Category Archives: Children’s carers and transition

SEN transport for 19 to 25 year olds: do councils have more responsibility than they think?

Any law firm representing a local authority at SEN tribunal who might feel inclined to gloat over yet another recent win against parents in the field of SEN law might want to think twice. Not only because the SEN system should not be about ‘winning’ and ‘losing’ (see the storm of condemnation that Baker Small attracted following its recent inappropriate tweet), but also because of the Care Act.

At first sight the case of Staffordshire County Council v JM [2016] seems like a potential money saver for local authorities and very depressing for young adults with Special Educational Needs, their parents and advocates. The parents of H, a 21 year old young woman with an EHC Plan, had won their appeal at the First Tier Tribunal (SENDIST) who had required the council to provide transport to and from the educational placement named in the plan. However, the council appealed to the Upper Tribunal and the Upper Tribunal’s judgement makes quite devastating reading from the parent’s point of view.

Firstly, it was held that SEN tribunals can’t find transport (for those of any age) to be either a special educational need (on the basis of the wording of the statute which specifies that these must ‘arise from a learning difficulty’) or special educational provision (since extensive previous case law had established that a journey cannot be part of educational provision).

Now this isn’t too much of a problem for young people of compulsory school age since there is an extensive separate transport duty under Schedule 35 of the Education Act 1996. Despite the ‘raising of the school leaving age’, those of sixth form age form yet another category of their own which I will not address here.

However, for adult learners (those beyond sixth form age) the situation is entirely different from that of both the younger two groups. The Education Act duty regarding transport for this group is to be found in s.508F Education Act 1996 (as amended by Children and Families Act 2014). But, as the upper tribunal pointed out in its second blow for parents, this is outside the jurisdiction of SENDIST anyway so cannot be challenged through the tribunal system and remedy in respect of issues around transport can only be sought through judicial review.

To further compound the depression of parents, the upper tribunal nevertheless went on to consider whether a council was compelled by the s.508F duty to provide transport for those with EHC Plans in this age group. They concluded that it does not create a free standing rule that transport for those with exceptional needs must be included in an EHC Plan. They also pointed out that the duty itself is very weak in terms of specific duties owed to an individual. This is because it is a general duty. It doesn’t say “if they consider it necessary in the particular case” , it says that councils must make such arrangements for transport “as they consider necessary” “to facilitate the attendance of adults receiving education” …

So far so depressing for parents, and, potentially, money saving for councils. However, this is the point at which all those concerned with Education Law would do well to stand back and consider adult social care law.

We can only speculate as to the detailed facts underlying this case (as the full judgement does not contain any details of H’s needs). However, under the Care Act, it seems very likely that a young person in this position would meet at least two eligibility criteria: of being “unable” (remembering the broad definition of “unable”) to achieve the outcomes of “accessing and engaging in work, training, education or volunteering” and “making use of necessary facilities or services in the local community including public transport, and recreational facilities or services”. These would be having a consequential significant impact on the young person’s wellbeing, at the very least in terms of “participation in work, education, training or recreation” (s.1 Wellbeing definition). Therefore, councils with young people aged 19 to 25 with EHC Plans should be assessing their social care needs under s.9 Care Act and considering carefully whether they need to provide transport under s.18 Care Act in order to meet a young person’s eligible social care needs. This would seem to offer a more fruitful option for resolving what would otherwise be a startling and problematic gap in the legal framework around meeting the needs of those of this age group accessing educational placements named in EHC Plans.

Wiltshire responsible, by a 4:1 majority, in the Supreme Court – the outcome, analysed….in Care Act terms

For those following the law of ordinary residence, it will be appreciated that the government’s guidance about the subject, for the Care Act, had to be written in somewhat opaque terms, because of the progress up the judicial system, of the Cornwall case: a case where three councils were slugging it out over some years, about ongoing responsibility for adult services for a young man born in Wiltshire, fostered to South Gloucestershire and visiting Cornwall at his natural parents and siblings’ home, twice a year.

The Secretary of State had said Cornwall was where PH, the young man was to be regarded as o/r, not on the basis of his intention, because he lacked capacity, but on the basis that this was where his real ‘base’ was. Cornwall used judicial review to challenge that decision; the care was costing £80K a year. The High Court found that the Secretary of State was at least not WRONG about it being Cornwall.  The Court of Appeal said ‘Rubbish!’ however, and that it was in fact South Gloucestershire.

The Supreme Court has now said it is and was Wiltshire, all along – restoring, in my opinion, some sanity, intellectual coherence and consistency into the interpretation of the law, in such a way as to make it hopefully much easier to predict the ordinary residence of people with care and support needs when they transition into adult services.

Here are the important bits in the judgement, to my mind – do read them, it’s really worth it, for understanding the issues. I have added emphasis where I think it helps.

“Allthough the choice of South Gloucestershire may fit the language of the statute, it runs directly counter to its policy. The present residence in Somerset is ignored because there is no connection with that county, other than a placement under the 1948 Act. By the same policy reasoning, South Gloucestershire’s case for exclusion would seem even stronger. There is no present connection of any kind with that county, the only connection being a historic placement under a statute which specifically excluded it from consideration as the place of ordinary residence for the purposes of that Act (the Children Act).

54. The question therefore arises whether, despite the broad similarity and obvious underlying purpose of these provisions (namely that an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it), there is a hiatus in the legislation such that a person who was placed by X in the area of Y under the 1989 Act, and remained until his 18th birthday ordinarily resident in the area of X under the 1989 Act, is to be regarded on reaching that age as ordinarily resident in the area of Y for the purposes of the 1948 Act, with the result that responsibility for his care as an adult is then transferred to Y as a result of X having arranged for his accommodation as a child in the area of Y. 55.

….It is highly undesirable that this should be so. It would run counter to the policy discernable in both Acts that the ordinary residence of a person provided with accommodation should not be affected for the purposes of an authority’s responsibilities by the location of that person’s placement. It would also have potentially adverse consequences. For some needy children with particular disabilities the most suitable placement may be outside the boundaries of their local authority, and the people who are cared for in some specialist settings may come from all over the country. It would be highly regrettable if those who provide specialist care under the auspices of a local authority were constrained in their willingness to receive children from the area of another authority through considerations of the long term financial burden which would potentially follow.

58. Section 24(5) poses the question: in which authority’s area was PH ordinarily resident immediately before his placement in Somerset under the 1948 Act? In a case where the person concerned was at the relevant time living in accommodation in which he had been placed by a local authority under the 1989 Act, it would be artificial to ignore the nature of such a placement in that parallel statutory context. He was living for the time being in a place determined, not by his own settled intention, but by the responsible local authority solely for the purpose of fulfilling its statutory duties.

59. In other words, it would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect, when it came to the transition in his care arrangements on his 18th birthday. [emphasis from Belinda]

60. On this analysis it follows that PH’s placement in South Gloucestershire by Wiltshire is not to be regarded as bringing about a change in his ordinary residence. Throughout the period until he reached 18 he remained continuously where he was placed by Wiltshire, under an arrangement made and paid for by them. For fiscal and administrative purposes his ordinary residence continued to be in their area, regardless of where they determined that he should live. It may seem harsh to Wiltshire to have to retain indefinite responsibility for a person who left the area many years ago. But against that there are advantages for the subject in continuity of planning and financial responsibility. As between different authorities, an element of arbitrariness and “swings and roundabouts” may be unavoidable.

 

What are the implications for the new Act equivalent provisions?

Anyone who has had training from the Care and Health Law team will recall that my team members have been teaching that absent a decision from a person to take a tenancy in another area, on leaving children’s services or a foster placement, the authority that WAS responsible, remains responsible. We have been teaching that because we are capable of critical legal thinking, and have thus applied such thinking to the Guidance, and been prepared to stick our necks out. That was the whole point of extolling the benefits of Legally Literate training, before the Care Act came into force.

The new Act allows for the concept of deemed continuing ordinary residence to arise not merely in relation to council arranged and paid for placements but also in respect of tenancies, so the ability to move into supported living out of area, through a capacitated or lawfully authorised deputy’s decision cannot any longer signal a shift in o/r. But the importance of this decision lies in the determination of the court to limit the influence of the Vale 2 test, particularly at the point of transition, and to set a general principle that barring exceptional circumstances, the authority that was responsible for the child, will also be responsible for the adult. Thank goodness for that!

Where a person has

a) either the capacity to move into a tenancy in their own name but clearly ongoing needs for personal care (however much may be required)

or

b) their lacking capacity to make that decision, it is nevertheless in their best interests to do so, it having been carefully assessed for, planned for, and properly resourced, and valid tenure having been secured,

then the new rules on specified accommodation and ordinary residence continuing, DESPITE it being a tenancy, and not a placement, will apply, and the old council will remain liable.

This should should stop councils being keen to export people into supported living for no really good reason other than divesting themselves of ordinary residence responsibility.

But in a case where a young person is conscientiously believed to need to be in a care home, for reasons of the need for access to care and supervision (or DoLS?) together with the accommodation in a fully managed environment, and is incapable of expressing a choice, by reason of mental incapacity, it will be the authority that was previously responsible for the person when they were a child – wherever the appropriate placement happens to be.

If the young person needs to go into a care home and IS capable of expressing a choice, he or she will have choice of accommodation rights, because an arrangement to pay for a care home will be a placement, and Choice rights apply to all such arrangements, albeit that there are limitations to do with the budget, and the suitability of the preferred accommodation, of course.

When will the old authority NOT be responsible on transition to adult services?

One example is this: if the young person can move into non-specified accommodation, or makes their own arrangements for a tenancy without that being part of a care plan based on personal care, as defined, being regarded as necessary in the place where the person is going to live, in order that the assessed eligible needs can be met, then the person’s ordinary residence WILL SHIFT, and the Continuity Provisions (about being assessed by the new authority before the move is made) will apply.

What about people who are not transitioning? For instance, elderly incapacitated people, moved to an area by loved ones, despite the person not having positively chosen, in the sense of voluntariness, or even knowing acquiescence, to have made the move?

I don’t think that the Vale 2 test is completely obsolete, in relation to incapacitated people’s rights to care – despite this decision limiting its effect, or rather, explaining its central reasoning, much more carefully than the previous case law has bothered to do, before now.

I think that where people benignly move their relatives without input from a council, and then find that they can’t cope, so need adult social care, it will still be the authority on the spot that has to pick up the pieces, even though the person has not chosen to come, and has been PUT there by loved ones, in effect.

Section 117 Mental Health Act care planning

And what about the implications for mental health patients needing s117 care plans? Those familiar with the legal literacy materials from Cornerstone Chambers and the Government’s own guidance will know what the issue is here. The old s117 provisions based on responsibility tied merely to where one was physically resident, were amended by the Care Act to refer to ordinary residence, but there was no clarification of what that meant when the person sectioned and in need of s117 aftercare, happened to be a person who was living somewhere they had been placed, by a council from their OLD place of ordinary residence, and hence another council than the one on the spot was the authority of ordinary residence before the person was sectioned.

The question that now arises under the Care Act is whether ‘ordinarily’ resident in the amended form of s117 now means where they were factually ordinarily resident, or legally ordinarily resident.

My legal instincts, during the run up to the Care Act coming into force, have openly and controversially been to the effect that whatever the words say, strictly speaking, in s117 as amended, the courts might well find a way ot lean in favour of consistency and continuity, and stretch the s117 notion of ‘ordinary residence’ to include the fact that the place where the person was physically living was on account of the care management decisions of the council which was previously in charge of arranging and paying for the care – even though that was not the area where the person has been physically and potentially capacitatedly willing to accept a care home placement, and thus living, for ordinary settled purposes.

Yes, I know that the reference to ordinary residence in the amended s117 does not say or deemed to be ordinarily resident in respect of a Care Act care package….”

Yes, I know, too, that the deeming provision in the Care Act, only apparently applies for the purposes of responsibility for Care Act services, not MHA services…

And yes, this judgement in the Wiltshire case does not – as a matter of precedent, – determine whether that is a correct gut feeling.

But it does show that the Supreme Court is willing to take policy considerations into account – even if they are not what the Secretary of State’s officials believed them to be, so far as advice in Guidance, or even formal Determinations, were concerned!

So, it’s all to play for now, in a case where a capacitated person has been placed out of area in a care home or has taken up a tenancy where personal care is available if required, under the new specified accommodation rules, since April 1st 2015, and is then sectioned. Who’s going to get the issue to court?

If you want consultancy about the implications of this case, of course I provide it for money!

Also, whether you are a purchasing council, or a provider, needing to know who on earth should be paying your fees – if you want to organise legally astute training on ordinary residence, for s117, learning disability or transition teams, please get in touch with Debbie, my administrator, on debbie@careandhealthlaw.com…