Category Archives: Recent cases and complaints

Luke Davey’s unsuccessful Judicial Review case against Oxfordshire – analysed from a legal perspective

Luke Davey has lost his judicial review against Oxfordshire’s revised care plan in light of the cessation of the ILF.

Luke Davey – High Court judgment in full

What issues did this case raise?

– The problem of dealing with clients who had been able to supplement the council’s care packages with ILF money, once that source of additional funding for people dried up: ILF was effectively a grant that enabled a large number of younger people to meet a large slice of their own needs, thereby purchasing a better quality of life and more well-being than those who were not eligible for the grant could ever have hoped for by way of social care. Inevitably when the fund closed, a loss of wellbeing was going to be experienced whenever a council decided that it could not and would not continue to pay for everything that the individual had previously had the means to buy.

– Whether a council must be able to show in detail whether it considered all of the statutory wellbeing features set out both in section 1(2) and had regard to those in 1(3) of the Care Act (to which the answer was yes, and the essence of s.1(3)(d) is a duty, when taking decisions, “have regard to each person’s particular individual circumstances.”

– Who is the decision-maker on what a person needs, after they have been found at least eligible? (the council), and to what extent are the client’s personally desired outcomes a necessary or determining factor for care planning? “There is no warrant for a conclusion that [the] balance is weighted more in favour of the service user, than it would otherwise be under the Act, to the extent that the service user can have the final say on his own needs and personal budget or dislodge the principle that, under the Act, the decisions are ultimately to be taken by the local authority. The wishes of the disabled person may be a primary influence, but they do not amount to an overriding consideration.”

– The extent to which a reduction in social activities on account of a reduced budget would invalidate a care plan’s legal validity: “It is possible that there might be less opportunity to go on day trips accompanied by his PAs. This very limited curtailment does not amount to a breach of s.1 of the Act.”

– How far a council has to go, in taking all reasonable steps to agree a care plan with the client before saying “No, we are not paying any more, and this is why.” – to which the answer was quite far, and conscientiously, but consent is not a necessary constituent of a signed off care plan.

– How minutely or not a council needs to be able to justify its mathematics in relation to its stance that what it is offering will conceivably and defensibly meet need: not down to the penny, and the evidence basis might in certain cases need only to be based on the staff’s opinion based on experience. With regard to carers’ terms and conditions, the higher DP agency rate was irrelevant because the client preferred to employ carers. And the Defendant said that there was no evidence that carers would leave, as the two main carers had withdrawn their resignations and the minimum wage of £7.20 “and the £40 night shift rate were compatible with rates many other service users were paying.”

– The extent to which a person’s emotional and psychological health and wellbeing are factors which are so obviously material to a proper assessment or care plan that a failure to take them into account would constitute grounds to vitiate any relevant decision: the judge found in favour of the Claimant’s position on this issue.

– The meaning of the concept of ‘independent living’, as a right in article 19 of the UN Convention on the Rights of People with Disabilities. It is not going to be of any real use to a disabled person, where the domestic legal framework presents as more detailed in relation to domains of daily life and wellbeing: in particular, no specific ambiguity in the Care Act was identified, in respect of which Article 19 might serve as an interpretive tool.

– The extent to which a council can say to a direct payment claimant “even if this sum isn’t enough for what we accept is an appropriate way for you to meet, it’s enough for something else that would do” (with regard to the notional cost of live in care). The council did not succeed in contending that the cost of something that they had not ever seriously suggested that Mr Davey could be offered (live in care in his own home) should be a benchmark proving that the greater cost offered was automatically enough – and that is not surprising: no council cannot offer a budget for something that would depend on a contract between a third party and the client about the use of a room belonging to the client!) The judge said this: “The purpose of the Personal Budget in the October 2015 Support Plan is a budget to cover the cost of a team of PAs. In this regard, whether alternative live-in care could be paid for within this budget is not relevant.”


Is it an end to litigation and the promise of the Care Act?

It’s the first proper case on care planning and wellbeing under the Care Act in a period of extreme austerity in adult social care, so it is very helpful for everyone; and there are no surprises in the judgement for anyone who appreciated that the Law Commission’s vision for the Care Act was based on continuing the substance of the pre-Act case law built up over 15 years.

But it is not an indication that a 42% cut in what has been spent overall, (eg in a mixed package with Health, and supplemented by ILF) is always going to be a safe bet for a council. There was a cut in what had been spent, but it was not a cut in what the local authority had contributed: it was an increase – and one in respect of which the judge said this: “The Defendant did put in a very substantial amount of effort, over an extended period of time, to seek to assuage the concerns of the Claimant and his mother.” There is no explanation as to what happened to the NHS contribution, interestingly enough, when the ILF ceased.

The legality of a cut to a care plan all depends on adherence to due process as well as to rational defensible substantive thinking on the matters that the Care Act and guidance require to be considered.

For legal framework commentators who like to assert that ‘need’ can be a subjective concept for the client’s determination under the Care Act, this part of the judgment would finally appear to make such a stance untenable: “there is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes. On the other hand if, in the course of a needs assessment, the local authority does not assess the matters specified in s.9(4) (including the impact on wellbeing matters set out in s.1(2)) then there is a breach of the statutory duty. There is, thus, a duty on the part of the local authority to assess these factors.”

The implications for practitioners:

Legal practitioners need to refresh their memories of the public law that they learned once: procedural impropriety, illegality, irrationality and breach of human rights are the grounds for judicial review; and to remember that judicial review is not an appeal – a high threshold of irrationality has to be reached to shift the position that a public body’s decision, particularly as to the use of scarce resources, is valid – it remains that way until quashed, even if people don’t agree with it. “The result may impose change or even strictures upon the Claimant which are unwelcome, but that does not of themselves mean that the process has been unlawful.”

When reading assessments it is important to focus on whether the issues facing the client are reported speech by him/her, or a carer – or a professional’s opinion, whether or not consistent with what they the staff, have been told.

Social workers and advocates need more legal literacy elements in their professional training – difficult conversations training, effectively, by people with legal acumen.

The funding (and thus the PA hours) had been sensibly tapered down over a period. An experienced social worker was brave enough to assert in this case that being alone for longer periods of each day would improve Mr Davey’s independence and confidence, and that changes in the Claimant’s current care team would be positive for the Claimant and his emotional wellbeing, enabling him to reduce dependence upon specific carers. This reminds me that the position of Kensington & Chelsea was that not providing mobility assistance at night would improve Ms McDonald’s privacy and safety. “That was a social worker’s assessment which could not be regarded as Wednesbury unreasonable and was a matter for her professional judgment…. I am satisfied that Ms Lovelock and Ms Collins did genuinely believe both that developing the Claimant’s independence was a need and that spending more time alone was a way in which to achieve this end.”

One may not aspire to be the person who has to say such things, as a social work trainee, but one needs to bite the bullet, if it can be done conscientiously and consistently with social work professional ethics, if one chooses to work in the public sector. A position on the part of a client, carer and advocate that it is essential that there are no changes to a plan, although understandable in human terms, cannot be allowed to fetter the judgement and probing for an evidence base by review staff who are spending public money.

Any council or CCG can offer a re-assessment, once challenged about a proposed revision – and many do, once someone is well informed enough to point out that the public body has blatantly failed to comply with the Act somewhere along the customer journey. Judicial review could achieve no more, after all. But the re-assessment won’t be of any use to the client if the council’s instructions to staff about re-assessment amount to a continuing illegality under the Act: for example – “Make sure that the indicative budget comes out at what it came out at before, even if you have written down more of the client’s outcomes”; or “Do not let the carer even begin to think of withdrawing from caring informally – we can’t afford that”.

Given the risk above, practitioners MUST elicit sufficient information from a council or CCG as to their approach to the statutory thinking stages, prior to being able to give the client an idea whether or not there are grounds for judicial review – and accept or refuse a re-assessment as part of pre-action protocol correspondence, dependent on whether the public body is prepared to shift any indefensible approach that would still infect any new process.

On the question of pay rates for PAs in the area, where the evidence from the council was weak and based on the practitioner’s opinion, contracts teams can help with evidence; with regard to any cuts, and public bodies’ lawyers should note that it is always best to add to a care plan words such as this: “if problems do arise from the trialled changes, we will revisit the issue.”

This openness to the need to reconsider the situation soon, helped Oxfordshire on pay rates but it was also clear that Mr Davey had in the past and recently himself recruited external non-family carers at the minimum wage. The council provided a cogent explanation why the Claimant’s evidence of a lack of response to his own recent advert for carers, did not establish that it was difficult to recruit at the rate provided for.

It’s not surprising that Mr Davey lost, on the facts of the case. His carers withdrew their resignations and he very honestly acknowledged that as long as he didn’t have to have more than 2 hours alone, he could stand more than one period a day of being alone, without suffering from depression or anxiety, and he had refused counselling.

But I don’t think that the case sends any particular message out that this is a field that will be shutting down.

It was just not the best case to take to court on wellbeing if one wanted to set a precedent that would be good for disabled people – in the same way that Elaine McDonald’s and KM’s cases were not the best cases to take about the concept of dignity in care, or about justification for the sum allocated.

What are the practical implications of this case?

For Oxfordshire, satisfaction that their conscientiousness and experience of senior staff won the day within the judicial review jurisdiction and relief that they were allowed to get their case in order during the run up to the hearing…

For the gentleman’s PAs, a choice as to whether to take less money by way of salary or leave…

For the rest of us – whoever we may be advising – the need to balance the desire to stand up for someone, against keeping in full sight the risk that there need to be some rock solid un-loseable cases brought to court under the Care Act – if things are really so very grim out there – which is why I am promoting the launch of a charity for free legal advice to try to encourage those cases out of the woodwork.

CASCAIDr will launch soon, once it has been approved for registration by the Charity Commission.

Are we creeping closer to emergence of solid LEGAL PRINCIPLE on cost-capping for home care packages, by reference to the cost of a package in a cheaper setting?

The end of this important case, A local authority v X (Holman J)

After the interim hearing, at which the LA had refused to trial the man out with a package in his own home for a month, given the long term financial unsustainability of the cost, the LA was required to serve a commissioning decision letter setting out what packages of care, if any, they would commission for the patient if the patient had capacity to decide to return to his home and chose to do so.

The letter was required to include consideration of direct payments to the patient.

The jointly instructed independent expert in this case, and also the treating psychiatrist at the hospital where the patient currently resides, were both required to file and serve updated reports as to capacity.

The Head of Adult Safeguarding and Learning Difficulties in the local authority wrote a further decision letter dated 31 October 2016.

The gist and effect of that letter is that the local authority remain unwilling to fund a package of care in the patient’s home with two carers present around the clock at a cost of a little under £500,000 per annum.

The decision maker did also consider a further quote that they had obtained from an alternative provider at the lower sum of £338,000 per annum, but he decided that even that cost “is unsustainable in the long-term. For similar reasons [to the earlier quote at just under £500,000] the local authority would also decline to commission a care package at this lower rate.”

The decision maker went on in his letter to consider whether the local authority would be willing to fund less expensive packages, essentially involving less intensive provision of carers. He concluded that they would not, essentially for two reasons. One reason was that they considered that there were potential risks to a single carer caring for this particular patient alone and that the wellbeing of the carers required at least two to be present at all times.

The other reason was that, in any event, the local authority considered that the needs of this patient are so great and that he so frequently needs two people present to turn him or assist him in other ways that, realistically, two people would have to be funded and present at all times.

The decision maker also decided that they were not willing, in this case, to make direct payments to the patient himself, which he considered “an inappropriate way to meet his needs”.

Comment

So would the council be walking away, if he were to leave hospital and go home, refusing the alternative placement in the hospital or elsewhere?

Would you believe it?

On 10 October 2016 there was consideration by the Independent Local Resolution Panel of a longstanding dispute in this case about the customer’s NHS CHC rights.

The court was told that the opinion of that panel will be that the care needs of this patient should be funded by the NHS through the local CCG. It turns out that the CCG was discharged as a party much earlier in the case, to be reinstated as a party in just this event. The poor old CCG!!

The judge then declared, once and for all, despite the council’s disagreement, interestingly, that the service user has capacity to make up his own mind about what he is to be offered (this will challenge the CCG, of course).

So, the CCG will have to decide whether it is appropriate to place this man in a care home or hospital or pay for his care in the community, and any challenge to that determination will likely proceed not in the Court of Protection but in the judicial review court, if anywhere!

Properly understood, the case establishes no new principle: it’s always been possible for a public body to decide that where two places CAN meet needs, there is only one practicable place to meet them, and choosing the cheaper of the two. It’s not a breach of human rights or of any Care Act principle to make that invidious decision. If people don’t like that, they need to lobby Parliament to change the law.

What the case hints at though, is that the council was probably given and accepted some firm legal advice that it was not open to abandon its professional judgement on some misguided altar of ‘choice’, (not even in the case of a person with capacity), and just give the person a direct payment of some lesser amount than is needed at home, or the alternative equivalent cost of residential care.

And that is what all CCGs and councils toying with such policies need to factor into their decision-making now, before they risk embarrassing themselves further and setting precedents that the sector has managed to avoid for over 20 years since the Lancashire case.

Original post

In the week that the Health Foundation, The King’s Fund and the Nuffield Trust have reported evidence of a £1.9 billion gap in funding in the sector, (see https://www.kingsfund.org.uk/blog/2016/11/listening-to-chorus-of-concern-around-social-care) where its authors have anticipated that legal challenges will inevitably arise, soon –  an important judicial decision has been released from Holman J., in the Court of Protection.

Readers will appreciate that in that Court, the judge has no judicial review jurisdiction to determine whether a council’s offer of a care package is lawful, irrational or unfair.

The CoP judges do have a limited Human Rights role, because they could find that a package being offered, which involved disproportionate deprivation of liberty or inadequate respect for a person’s article 8 rights, would not be in the Best Interests of the person concerned in the proceedings. That’s not quite the same as saying it’s unlawful; but it comes quite close. .

This decision, however, because of the heavy and articulate hints in it, should be seen as taking the adult social care world one step nearer to the holy grail of community care law: a position on the circumstances in which it could ever be lawful to offer a person a lower-than-known-to-be-necessary sum, to meet eligible needs, based on there being an alternative appropriate and lawful setting that would cost the council much less, but which the client wishes to refuse.

Here is a free reference to the case online: http://www.bailii.org/ew/cases/EWCOP/2016/44.html

The client in this case was the victim of an accident for which no-one was to blame; his care costs are astronomical. He is currently in a specialist hospital, in which the council has commissioned care, although it is not medical care, or the responsibility of the Health Service. The client may or may not lack capacity to decide whether to refuse a care package offered by the council – that issue has not been decided as yet, and may never be, because of the academic nature of the question, if in effect there IS only one choice for the man to make – the only choice that the council is prepared to pay for, for the foreseeable future, which is care in the current setting, on account of the costs were he to go home to his own home, an adapted rented house.

The difference between care in his own home and care in the specialist setting is £468K to £156K per year. The council had made a firm decision that it will not offer to meet his needs in his own home, but that it would meet them in the current setting, even though it is not the man’s preference or wish to accept living there for the rest of his life.

The cost of the care is on account of his behaviour as well as his needs, ie for the safety of staff, although no-one is suggesting that he should be able to stop himself from behaving unacceptably (so the Muriqi Kujtim doctrine could not apply).

CHC status (free NHS care) does not appear to ave been in the offing, despite his challenging behaviour, perhaps because although his injury was serious, rendering him tetraplegic, the needs that are exacerbating the inputs are in domains related to daily living rather than treatment, diagnosis medication or care, as such, and/or possibly because they arose from his prior personality disorder, and prior abuse of drugs and alcohol, and not from his injury.

The judge has masterfully managed to give his view, in 4 important excerpts from the report, without exceeding his jurisdiction in the Court of Protection:

“He has, I think, suggested that the local authority might consider paying to him the weekly sum that they pay the hospital so that he, with that funding, could organise his own care. That suggestion is, I am afraid, completely unrealistic.”

This suggests that in the judge’s view,  the council would not be likely to agree to this and could not be made to offer something that could not work.

….”one possibility is that they [the council] will say that they cannot fund any care on that basis, for the situation would be so unsafe for him that they would not be willing to participate in it.”

This is consistent with the Judge’s analysis being that it is legal and legally safe for the authority to say that “if he has capacity he can refuse a service but we do have to do anything further.” And that is consistent with existing case law and legal principle.

“He can fairly ask through the Official Solicitor what minimum and lesser level of care the local authority would be willing to fund if he does have capacity to decide to return home and does, in fact, choose to return home.”

This is a principle which emerged from an earlier case, KK, where in fact the judge there said there that an authority MUST make their view of the maximum offer that it would be prepared to make, in any other setting clear, before it can decide that someone in refusing lacks capacity to do so, thereby justifying a DoLS finding of lack of capacity. The judge there referred to a practicable offer – which in my view has always been a euphemism for an offer that was lawful, or at least one that was not likely to be so unlawful as to be judicially reviewable, not a figure out of the blue.

On one footing of course it’s possible to say that the other setting’s cost is not an arbitrary figure – it is rational, it would be argued, given the other option would have had to have been appropriate even to be a lawful offer in the first place. But that still doesn’t get one over the significance of the council’s knowing that the person’s needs would still cost MORE in their own home!  The judge is hypothesising here, In a case where the person’s own presentation requires the staff to be properly protected, the cost could not simply be derived mathematically from the alternative cost of another setting, where greater staff ratios would be always present.

This sends a very loud warning shot out to the social care world, that it could only ever be feasible to offer the price of another setting, to someone determined to stay at home or GO home, to capacitated people (or incapacitated people with a welfare deputy or attorney) to whom a properly defensible offer in relation to the cost of meeting needs in the actual anticipated setting, has been made.

Those needs may well have been re-drawn, on the second ‘go’ once an apparent refusal of care home care has been made, because the assessor may have been able, justifiably, to say this: “in your own home, your view of risk and the value or running it – together with your agreeing with us that you will not do x y or z, so as to minimise risk, (and any freshly volunteered informal input from friends, relatives, etc) has given us a lawful reason to fund you to the tune of less than we first thought would be needed” – but that’s not necessarily as low as the cost of residential care!

Where someone lacks capacity, in relation to refusing the offer of a care home, DoLS will still be available, obviating the need for consideration of a package at home, unless relatives threaten a judicial review.

“Frankly, if the local authority are unwilling or unable to fund a safe package of care within his own home, there is no other person or body who can, or will do so. Subject only to any possible judicial review of the decision of the local authority, the required safe level of care simply will not be available for him in his home.”

This suggests that his human rights and his rights to independent living under the Convention on the Rights of Disabled Persons cannot be used in the UK courts to establish a positive enforceable right to live in a non-institutional setting, if one needs State funded care. I would suggest that such care, in a care home, is still to be seen as IN the community, albeit more restrictive; further, the human rights in article 8 refer to the economic interests of the area and the rights and freedoms of others, as qualifying the human right in question – and in UN Convention terms, independence is a matter of degree and affordability for all of us.

Conclusions

All these points come from a legally literate approach to adult social care, without which, in my view, it is impossible for councils to function properly, whether that be strategically, managerially, or in front line operational terms.

All these points have been the subject matter of my training courses for over 15 years, because cost-capping first came before the court in a case in the late 1990s, involving Haringey – called ex p Norton no. 2, which was settled just before trial, and therefore no precedent ever set.

So how about this for a suggestion: isn’t it time that councils either allowed themselves to be judicially reviewed for doing it, so that we can all be clearer on the legal position?

Carrying on just settling cases if one looks really likely to go to court means that the vulnerable and the uninformed and the anxious get the least choice and freedom, and underfunded care packages – which must be the absolute antithesis of social work based on non-discrimination, anti-oppression, human rights and ethical practice.

If you want to be prepared for the legal challenges, don’t skimp on legal framework training, and get some in soon, by way of my webinar series via the Webinars page above,  or through my face to face training options on the Training page of http://www.careandhealthlaw.com

 

A great new case on the benefits of legal literacy: a successful judicial review of cuts to short breaks (for children)

West Berkshire’s disabled children’s short breaks budget cut, is quashed…

In a case that underlines the need for legal literacy on the part of MEMBERS as well as officers, in relation to fundamentally important decisions such as budget setting, the Administrative Court has quashed West Berkshire’s decisions to reduce the funding given to voluntary sector organisations to provide short breaks support to families with disabled children, by 52%.

There is an exceptional public interest in ensuring that when local authorities cut spending in a way which affects vulnerable children, they are seen to observe the relevant legal provisions, particularly where, as here, the amounts at stake are, in relation to the budget as whole, not large, and where there was flexibility in the money available to accommodate a smaller cut.”  Elisabeth Laing DBE  J

The judge’s decision was based on the omission to state for Members faced with the decision – properly – the public sector equality duty or the full extent of the duties in relevant legislation (the Children Act and regulations or guidance regarding best value and sufficiency).

A second decision to re-affirm the first decision was also flawed, by having been pre-determined – the council’s constitution precluded its rescission. And even though it was based on much better information about the legal framework, it did not flag up the possibility, or the pros and cons, of spending some of the council’s General Reserves to put the first decision right.

The asserted illegality of the first decision related to the council having failed

(1) to ask itself the right questions,

(2) to take into account mandatory relevant considerations (that is, the questions posed by, and/or the requirements of the statutory provisions which apply to short breaks)

(3) to give ‘due regard’ to the statutory equality needs described in section 149 of the Equality Act 2010

The Council faced an exceptionally difficult financial position late last year; and that position got worse in March 2016. It had already made savings of £36m over the last six years. Two thirds of its income comes from council tax. The Council had anticipated a 25% cut in revenue support grant (‘RSG’) but the provisional settlement for the next four years (received on 15 December 2015) was worse. The Council was to receive 44% less money from the Government in 2016-17, the third largest cut for any English unitary authority. In effect, the Government has introduced, without warning, a new formula for funding councils and this council was one of the worst affected. The Care Act 2014 had obliged the Council to expand its eligibility criteria for adult social care (it had been at Critical under FACS; and the provisional figure for savings which needed to be made went up from £10.8 to £19m as a result of those unexpected changes by Government.

There was comprehensive consultation done by West Berkshire, in relation to 47 areas of council functions and proposed cuts.

A large amount of factual information was provided to Members about the impact of the proposed cuts, but it was still alleged that because of the missing legal information the Council could not establish it had paid due regard to all the factors in the Equality Act.

While Members were given the text of section 149 Equality Act, they were directed, in four places in the documents, to a summary which did not accurately encapsulate, for the purposes of the decision about short breaks, the effect of section 149. Had the report only included the text of section 149(1), it might not have made councillors’ lives easy, but the judge said she could have been satisfied that they had considered the right question. The ‘summary’ way of presenting the equality issues unavoidably suggested that the approach was equivalent to, or a substitute for, the statutory considerations, and it was not good enough because it included some, but not all, relevant matters.

There was no trace in the materials given to members of any reference to the express language, or to the substance, of regulations 3 and 4 of the 2011 Breaks for Carers of Disabled Children Regulations, or of section 27(2) of the 2014 Children and Families Act (which requires councils to consider the extent to which that provision is sufficient to meet the social care needs of the young people concerned). There was no reference, either, to the duty imposed by section 11 of the 2004 Children Act to make arrangements for ensuring that the functions of the bodies to which that Act applies are discharged having regard to the need to safeguard and promote the welfare of children, or to the best value guidance, to which the Council was required to have regard.

That guidance is aimed specifically at, and ‘sets out clear expectations for’ councils which are ‘considering changing funding to local voluntary or community groups’. Paragraph 7 says that ‘Authorities should seek to avoid passing on disproportionate reductions – by not passing on larger reductions to the voluntary and community sector and small businesses as a whole than they take on’.

Had the preparation been done properly, it would have been open to the Council to conclude that, important as the impact considerations were, it was necessary to do less for disabled children, than the Council would otherwise wish to; but Members had to be satisfied that the proposed cut was proportionate, and that no other measures, such as increasing fees or reducing other budgets, could be used.

That was why, even though by the time of the second decision, when Members were properly equipped, to take into account the legal factors about duties to children which were relevant to a lawful decision, the later decision was still quashed. The Members were still not in a position fully to reconsider the proposed cut because they could not, under the Council’s constitution, rescind that decision.

The General Reserve is ‘expected to cover any of the following risks should they arise …risks in relation to litigation’. The claimant’s barrister contended that the risk of being required to reconsider these decisions is such a risk, and the Council could properly now draw on its reserves to meet that risk, and its consequences.

The judge was not satisfied by the terms of the new reports prepared for the later decision…

“that the Council was invited to consider the use of reserves, or, if it did, why it decided not to use them, since apart from the allusion to ‘difficulty’, the report does not explain whether or not it would be proper to draw on the reserves, and does not tell members what the ‘difficulty’ is; whether it is insuperable, or could be overcome. The Council has the reserves. The risk of losing this case, and of being required to reconsider the decision is arguably a risk the reserves are held to meet. I have heard no argument from the Council that it is not.”

Commentary

I hope readers can see that knowing the legal framework under which day to day work is done is an essential skill or attribute for senior management and lawyers working in local government. That means the Care Act, Guidance and Regulations and public law principles, for adults’ services decision-making, of course.

I hope also that readers can see that the Best Value guidance – applying as much to the need for proportionality in proposed cuts to voluntary sector adults services providers, as it did to children’s sector providers here – must be essential reading for any future decision-making regarding adult social care budget setting.

The best bit, for me, though, is judicial reiteration of the principle that the reserves are not sacrosanct. Indeed, one of the reasons for reserves, is management of risk, and that includes legal risk.

So – anyone feeling the need to challenge an apparently inadequate personal budget should say this to the Panel, loud and proud, please:

“Reserves surely do need to be formally considered as available to resolve this dispute, because I have a good strong case on illegality, which I shall gladly set out for your Monitoring Officer’s consideration and potential legal challenge.”

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.

Authorising Deprivations of Liberty: Can we safely ignore “private” situations?

As those working in social care will know, care providers and councils are already overwhelmed and struggling to ensure lawful authorisation of all care situations involving Deprivations of Liberty following the broadening of the definition of ‘Deprivation of Liberty’ by the decision of the Supreme Court in Cheshire West. The current situation is so bad that four councils are seeking a judicial review of Government funding  for DoLS.

The Cheshire West decision was important and revolutionary for disability equality, establishing that disabled people are entitled to the same rights as everyone else and should not have their liberty infringed without careful, independent review and legal recourse, no matter how ‘normal’ and pleasant the circumstances of their care. Legally speaking (Storck 43 EHRR 96) there are 3 components which are required for a situation to require formal legal authorisation in order to comply with Article 5 ECHR. These are: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state.

In situations involving those who lack capacity to consent, requirement (b) is satisfied. Cheshire West widened the scope of situations which now meet (a). And now, in a recent case, the scope of (c) has been called into question.

In Staffordshire County Council v SRK & Anor [2016], Mr. Justice Charles considered whether, when someone’s liberty is removed in the course of a privately funded care package in the client’s own home (in circumstances which met the criteria for (a) and (b)) the Deprivation of Liberty is imputable to the state. The full judgement is extremely complex and examines the issue in depth. For practitioners and councils, the important information is that he concluded that, under certain circumstances such “private” situations are imputable to the state. This means that providers should be informing councils of the situation and either or both of the provider or the council should be applying to the Court of Protection for a welfare order.

In this case it was held that the involvement of the courts in awarding Personal Injury damages and the Court of Protection itself in appointing a deputy to administer those damages was a sufficiently active form of state involvement to create a responsibility on the state (through its positive duty to seek to uphold the Right to Liberty) to require the state to seek legal authority for the detention.

He clearly indicated that this judgement would apply to all future cases in this class and that future personal injury damages awards should take account of the additional costs involved in seeking Welfare Orders in similar cases.

In coming to this conclusion, he pointed out that “in a number of such cases P may well may not have the support of family or friends who take an active role and interest in P’s care and life.” (paras 71 & 72) and, therefore, it falls to the state to ensure that the rights of the individual are protected.

This case widens still further the circumstances under which a deprivation of liberty is imputable to the state and, thus, outside of a Care Home or Hospital, requires authorisation by the Court of Protection. Estimates contained in the judgement suggest that the result will be at least an additional 250-300 cases requiring welfare orders.

However, this is unlikely to be an end to knock-on consequences of the application of the Cheshire West decision in practice.

In pre-Cheshire West case law, Re A and Re C [2010] EWHC 978 (Fam) 64, it had been established that care circumstances created by a family within their own home were not imputable to the state. However, it is difficult to see how this case does not raise the possibility or even probability that the ultimate result in an equivalent case might now be different. The continuing application of Cheshire West in practice seems destined to reduce to the level of mere awareness the role of the state which is sufficient to render objective circumstances which deprive someone of their liberty imputable to the state and thus a potential breach of Article 5 which can only be remedied by means of formal legal authorisation (the only option for which is currently by means of a welfare order from the Court of Protection for situations which fall outside of the DoLS framework).

According to one strand of Charles J’s reasoning in this judgement, mere knowledge through safeguarding and/or regulatory processes is not sufficient to render an objective deprivation of liberty imputable to the state and thus an Article 5 Deprivation of Liberty. However, if we follow the other strand of reasoning, that of the Bournewood gap, it is difficult to see how arbitrary detention can be protected against in cases where mere awareness is the limit of state involvement, and thus there is at least the potential for a future ruling that, as a result of the widened definition of deprivation of liberty created by Cheshire West, the positive obligation under Article 5 requires the state to provide a domestic regime of law, supervision and regulation to authorise even entirely private deprivation of liberty situations such as that in Re A & Re C [2010].

Councils and care providers would, therefore, be well advised to err on the side of caution and avoid assuming that they do not have to take steps to seek legal authorisation of a deprivation of liberty in even the most apparently “private” of circumstances once they are aware of their existence. Under the current circumstances of a massively overstretched system, this will not be immediately welcome news. However, the fundamental principle that all detention of those who lack the capacity to consent should be subject to independent scrutiny and review is very much to be welcomed. It can only be hoped that additional cases will add further to the pressure to resolve the current legislative and funding provisions to catch up to the modernisation of the law in this area by the courts.

Commentary on the legality of confinement of children and young persons in the light of Birmingham’s case for a 16 year old

Last week, in BIRMINGHAM CITY COUNCIL v (1) D (BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR) (2) W (2016) [2016] EWCOP 8, the judge who has been making waves in the children’s social care world, Mr Justice Keehan, gave a judgement that was the inevitable sequel to his consideration of the same facts last year, when the young man in question was just short of 16 years old – he then reached his 16th birthday, at which point the Mental Capacity Act became a regime which could be applied to his situation.

The following bullets are the important principles that I believe can be derived from the case, which are of importance to the world of special schools and homes for children, whether through s17 Children Act service provision for children in need, s20 agreed accommodation arrangements, (where parental responsibility remains with the parents) or s25 secure accommodation orders or Care Orders under the Children Act (where PR is shared with parents, at the discretion of the council in question).

  • It is settled law that parental responsibility continues up to and until a child’s 18th birthday; Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. The principle that parental responsibility extends to children aged 16 or 17 was accepted by the Court of Appeal in Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 4 All ER 627 but that doesn’t mean it extends in all regards.
  • “[T]he legal right of a parent to the custody of a child ends at the 18th birthday; and even up till then, it is a dwindling right which the Courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice.”
  • Neither Nielsen nor Re K are actual authority for the proposition set out in the final sentence in paragraph 14 of [the first] RK [case] namely, “a parent may not lawfully detain or authorise the deprivation of liberty of a child”. There is no decision of the ECtHR or domestic authority directly and explicitly on the issue of parental consent to the confinement of a child in circumstances which would otherwise amount to a deprivation of liberty and in particular asserting that a parent cannot consent to the same.
  • A Local Authority v D and others sets out the limitations of the circumstances in which a parent could give a valid consent, especially where the child was accommodated by a local authority pursuant to s 20 CA 1989 or was the subject of an interim, or final care order. The possibility of parental consent, now, sanctioning objective confinement based on agreement as to best interests would have to be limited to a child under 16, now, because of this later analysis in the instant case: Keehan J said this: “I am not persuaded that a parent can consent to the confinement of a child who has attained the age of 16. Such a consent falls outside the zone or scope of parental responsibility.“
  • In respect of the provisions of s8(1) Family Law Reform Act 1969 and s 20 Children Act 1989, giving any capacitated 16 or 17 year old rights to consent to treatment, or to accommodation by the local authority, the young person who still counts as a child cannot override the consent of a person with parental responsibility relating to treatment or accommodation.
  • However, the implication of this case is that if a capacitated child of 16 or 17 does not agree with the s20 confinement regime, and the regime or treatment amounts to, (or the proposed treatment would require) objective confinement amounting to deprivation of liberty, the arrangement would have to be authorised by the court as well. Putting this another way – the regime proposed under a s20 accommodation care plan needs to be consented to by any 16 or 17 year old if it satisfies the acid test: the parents cannot agree to the regime, as part and parcel of agreeing to the accommodation, obviating the need for an application to the Court – the CoP, or via reliance on the inherent jurisdiction of the High Court if it is unclear if the person retains the presumption of capacity for this specific issue. 
  • It is already decided that a local authority who had parental responsibility for a child, by virtue of an interim care order or a care order, could not consent to the confinement of a child (under 16) which would otherwise amount to a deprivation of liberty: see A Local Authority v D and others [2015] EWHC 3125 (Fam) at paragraphs 26-29.
  • Although normal parental control over the movements of a child may be exercised by the local authority over a child in its care, the implementation of a secure accommodation order under s25 of the CA does not represent normal parental control. But a secure accommodation order will have been granted after a judicial process, and hence will not be a breach of human rights.
  • In all cases, the local authorities responsible for care planning, commissioning and best interests decision making, as well as funding, need to be the ones getting the cases to Court.

 

Summary for schools and children’s homes:

Under 15s in any setting, capacitated or incapacitated: parental consent can suffice to legitimise a benign regime that amounts to confinement or the use of the inherent jurisdiction is possible for the council, if the legitimacy of the regime is disputed by parents.

16+ – accommodated or under a care order of a full or interim nature, in all cases for other than a capacitated young person, positively consenting to the regime – in schools and OFSTED homes or supported living: Court of Protection even if the parents are in agreement, or an application under the inherent jurisdiction, if unsure about the child’s capacity (UNLESS the placement in the setting has been authorised under s25 Children Act or the MHA)

18+ and lacking in capacity in a CQC registered care home or hospital: DoLS and ultimately an appeal in the CoP

18+ and lacking in capacity and not in a care home or hospital: a Single Order application in the CoP

If, in either of the last two situations, the person is confined against own wishes, and does not lack capacity, then the person’s supporters need to make a referral to safeguarding, and seek advice about seeking habeas corpus or using the inherent jurisdiction of the High Court.

An in-depth analysis of the first case under the Care Act…

R (SG) v London Borough of Haringey (decided in early August, as publicised by Community Care) (SO sorry for first saying it was Hackney! Am losing capacity from Care Act craziness….)

This case decided at least three important things:

  • Absence of Independent funded Advocacy where the right has been triggered, or could not reasonably be denied to have been triggered, renders an assessment invalid (see earlier post);
  • There is a legal need – at the care PLANNING stage under the Care Act – to consider (correctly, in terms of legal precedent) whether eligible needs are ‘accommodation-related’, in the case of someone who may be prohibited from such assistance by reason of immigration status;
  • The old law on what constitutes ‘accommodation-related’ eligible needs, should be regarded as still correct, and should be followed on the same principles as before.

Introduction

The claimant was an asylum seeker, both before and after the coming into force of the Care Act. By the time of the hearing, she had been granted asylum, but she challenged two decisions, one made in January 2015 and one made in May, ie one under the National Assistance Act and one made under the Care Act, that she had needs for care and attention (which counted as eligible needs under the Care Act) but was not entitled to accommodation through these social care functions.

An earlier post considers the significance of the advocacy part of the judgement but this posting analyses the harder part – the issue related to whether the woman needed to be provided with accommodation or just other non-accommodation services IN her NASS provided accommodation, whilst still an asylum seeker.

The judge declined to make a decision about the pre-Care Act January decision because as soon as a person has had a Care Act review, then they are to be provided for (if both eligible and owed a duty) under the latter Act, making looking back into the past generally a redundant exercise.

The post-Care Act May decision was firstly made on the basis that the claimant was not entitled to receive accommodation under the Care Act, because she had accommodation available to her (the NASS provided accommodation). The old law had always been that one had to ignore the accommodation provided by NASS when deciding whether care and attention was otherwise available under the NAA.

This judge held that that is STILL the law, under the Care Act. The council had conceded that point, however, at the hearing.

Haringey asserted that since this was a service provision dispute only the pre-action protocol at paragraph 3.1 suggested that there was  an adequate remedy for this under the Council’s complaints procedure. The judge said that ‘in my view, it is not adequate to deal with contested interpretation of legislation’, which has always been the preferred analysis by public lawyers.

The contested issue

The claimant had a wide range of signficant inabilities under the eligibility criteria, and she had Care Programme Approach needs as well. Although they described her as not eligible, the council seemingly accepted a clear duty to provide services, both before and after the May decision, but not by way of accommodation through its new Care Act powers.

The meaning of NAA ‘care and attention’ (and what needed to be considered for people potentially prohibited from receiving services by reason of their immigration status unless not solely needy through destitution)

The old case law under the National Assistance Act was to the effect that the need for care and attention had to be at least accommodation-related – not just a need for a fridge, or other physical assistance, for instance. It did not mean that the care and attention could ONLY be the kind that could be provided by a specialist setting such as a care home. But the old case law established that a need for ‘care and attention’ simply had to mean something more than ‘accommodation’ – section 21(1)(a) was not ever intended as a general power to provide housing.  The natural and ordinary meaning of the words ‘care and attention’ in this context was ‘looking after’, meaning doing something for the person being cared for which he could not or should not be expected to do for himself: it might be household tasks which an old person could no longer perform; it might be protection from risks which a mentally disabled person could not perceive; it might be personal care, such as feeding, washing or toileting…The input had at least to be care and attention of a sort which is normally provided in the home (whether ordinary or specialised) or would be effectively useless if the claimant had no home.

Having summarised the old law, the judge said these principles continued to apply under the Care Act, in his opinion:

(a) the services provided by the council must be accommodation-related for accommodation to be potentially a duty;

(b) in most cases the matter is best left to the good judgment and common sense of the local authority;

(c) “accommodation-related care and attention” means care and attention of a sort which is normally provided in the home or will be “effectively useless” if the claimant has no home.

The public law mistake

The real failure on the part of Haringey was that it failed to ask itself the right questions. The judge found no evidence at all that the defendant ever asked itself whether, even if the necessary services could have been provided in a non-home environment, they would have been rendered effectively useless if the claimant were homeless and sleeping on the street. “This is so despite the fact that it was acknowledged that it was “agreed that [the claimant] would benefit from some structured activities to minimise her PTSD symptoms but before that she needs help with the very basic practical support before she can be referred for more structured activities.” I thus think that the care plan has to be redone.”

So, this is the first care plan struck down for failing to consider all relevant considerations or for error of law, as well as having been derived from an invalid assessment for want of mandatory advocacy….

The judge quashed the council’s decision such that it would have to re-assess and re-care plan. But he gave his view that only two of the various services being given to the woman were accommodation-related. All the other council provided services were to do with learning support, counselling, advice, escorting, language support, and management of appointments. However, she was already being

  • visited at home by an officer and her home environment was checked;

(b) assisted with domestic and practical tasks in the home by other women who lived there and by the officer;

Interestingly, notwithstanding those two aspects, the judge thought it could still be lawfully within the discretion of the local authority to decide that it was not appropriate to meet needs through the provision of accommodation.

He did not tell the council how to go about articulating that sort of conclusion, though!

The result

The judge ordered Haringey to accommodate the woman in suitable accommodation at least until a number of days after a decision would be re-taken by the Haringey Vulnerable Adults team, in respect of the woman as a legitimate asylum grantee (the idea being that she would in all probability now be accommodated in supported living services because of her mental health needs).

This would be done under Housing functions under the 1985 or 1996 legislation, as a vulnerable adult, (if she had capacity to make an application for public housing), or through the power to provide accommodation, pending a concluded s9 assessment, under the Care Act.

Finally, the judge ordered Haringey to pay 75% of the claimant’s costs so the legal aid she had been funded through, was paid back, in large part.

Important Postscript

The case of R (MT) v Oxford City Council [2015] EWHC 795 has been decided this summer too, and establishes that an incapacitated person with a deputy CANNOT apply for public housing, and can ONLY rely on the social services function of provision of accommodation (ie via a placement, not a tenancy signed by the deputy).

We are not sure, but we think that this must be seen by housing policy makers, as a judgement which drives a coach and horses through joint working between housing and social services – eg in relation to very many severely cognitively impaired young people who have been decanted from NHS accommodation and who now HAVE deputies, or single orders from the Court of Protection with regard to the signing of tenancies in housing association accommodation, to which they were directed through housing legislation.

If a deputy can sign an ordinary tenancy outside of housing legislation nomination or introduction, and an incapacitated person can get housing benefit, based on the doctrine of necessaries, (Wychavon) it seems to me to be essential for maximisation of income and normalised lifestyles, and minimisation of expenditure through LOCAL authority funds, as opposed to Housing Benefit, that a deputy CAN make an application for public housing, as homeless or by way of joining the ordinary housing list. Yet the judge refused leave to appeal.

 

NB Belinda won’t be blogging at this length on every case under the Care Act, please note. These sorts of notes go into the free legal database on www.careandhealthlaw.com, but she was so ecstatic that there’d even been one, that she could not stop herself, just this once.

A great case I’ve just come across regarding specialist care, commissioners and care planners…

Some years ago I went to a council do some training on the legal framework and did not er, hold back. 

The feedback was that although everyone had enjoyed it, and got value from it, the view of senior management was that my visit “should have been risk managed”. I was pretty chuffed to have made such an impression at the time, I can tell you, but I haven’t been asked back since!

So I was very interested to see that warnings that legal difficulties would ensue, unless more attention was paid to public law legal principles by the management team, appear to have come true! Always great when that happens, methinks!  The case is called Clarke, and here is the link to the case.

By 2013 the claimant, a man in his 20s with severe epilepsy, mental health and behaviour that challenged, had become “ordinarily resident” in a tenancy where personal care was available to him in unregistered accommodation. So the new council where the tenancy was situated became responsible for the claimant’s care, in place of Enfield, which had funded the move into the supported living setting, and continued to pay, within its discretion, a specialist epilepsy provider registered to domiciliary care.

In fact the new council did not carry out an assessment until 5 months after Enfield withdrew its willingness to carry on paying, and when it did, it concluded that the claimant’s care could be provided in a non-specialist manner. A support plan costed this at £357 per week as compared with the care package Enfield had been content to pay for, costing £1,300 per week. The new council refused to continue to fund the package from the previously contracted provider, and the young man got an interim injunction to prevent cessation of the package.

Evidence from a specialist neurologist and an epilepsy nurse documented active epilepsy, night seizures and risk of status related to stress and any non-compliance with medication, and injury from falls and 1-2 unpredictable tonic clonic seizures a month.

The provider’s evidence about its provision included its bespoke alarm system, staff trained in all emergency medications administration, and highly skilled management of prolonged seizure activity with access to 24 hour support and monitoring, including waking night staff.

During the pre-trial period, the council raised the allocation amount a little and said that Mr Clarke needed “Waking night support for 3 nights per month, in anticipation that your client will have up to 3 seizures a month during the night”.

Instead of accepting that the provider’s business model of charging per week was valid in relation to the need for 24 hour support, the council purported to assess as an appropriate response to the above profile of need, the following TIMED services:

  • Support for 3 hours for 7 days a week to assist him with taking medication, meal preparation, eating/drinking and showering and bathing
  • Support for 3 hours a week to assist him with cleaning, budgeting and managing bills and correspondence.

The council purported to allocate money for these needs at a level of £661 a week as a direct payment. The council did not consult the claimant before producing the updated plan; nor had it explained how it evaluated the claimant’s needs to produce the weekly figure of £661.

The council did not call for its own independent evidence, from any consultant or other experts in the field of epilepsy treatment or care. Although it had available to it the opinions expressed by the claimant’s consultant, GP, epilepsy nurse and care provider it effectively relied on the judgement of a social worker who did not claim to have any medical skills or qualifications.

In evidence, Independence Homes, the provider, said this:

“A waking night’s staff allocation for three nights a month would put Mr C in danger as it is nonsensical to suggest that assistance with medication is only needed some of the time. Additionally, his seizures are not limited to nights. They are whilst sleeping. This puts him at risk of death. So, he could easily (and often does) have a seizure whilst sleeping in the morning or early afternoon. That is why he needs 24 hour care. Sleep in support would not be able to respond to a seizure in time.”

The council maintained that another provider from whom there was no evidence would be able to meet needs, if Mr C moved from his tenancy to another address. That is, the adequacy of the provision at the cost the council wanted to keep the package to, was dependent on the service user agreeing to move HOME to another house where he would receive services from the cheaper domiciliary provider.

The judge found in favour of the claimant, and quashed the decision of the council, ordering it to re-assess the man’s needs lawfully.

[an aside here: if people with disabilities, and advocates out there, cannot do some good with this fantastic precedent about the right – and the very wrong – approach taken in this case, in these difficult times of Care Act implementation, I do not know what to offer instead, I have to say!]

Please read on for the wisdom of the judge:

“It is important to keep in mind that this is a case in which the claimant has been in receipt of these services for a number of years in circumstances in which his medical team and care providers have made it clear that his needs have not decreased. It is to be distinguished from the type of case in which a claimant is seeking services which he has not had in the past.

In my judgment the assessment by the defendant demonstrates a failure to understand and address the claimant’s medical and support needs. This is most apparent in the approach adopted by the defendant to the provision of support to provide three nights waking care a month against a background of medical and other evidence which demonstrates the need for 24 hour care in circumstances in which seizures, including sleep related seizures are unpredictable and cannot be pre-determined. The explanation as to the basis upon which three waking nights care a month are included within the package as offered in the hearing before me simply does not make sense and does not address the needs identified in the reports from the medical and other professionals.

It is also the case that the claimant has a tenancy at his current placement which has been his home for more than four years and there has been no care plan produced from the proposed non-specialist care provider.

…Notwithstanding the high hurdle faced by the claimant [on judicial review], [I find that] that the decision by the defendant failed to give appropriate weight to obviously relevant material and relied excessively on the non-expert view of a social worker in a face of a wealth of evidence to the contrary from appropriately qualified and experienced experts. I find that those opinions have not been given sufficient weight in the decision-making process and that in those circumstances the defendant should re-assess the claimant’s needs and the extent of care that as a consequence is required.

It was accepted that article 8 [the human right to respect for one’s private and family life and one’s home] was engaged. … I am satisfied that the defendant’s decision that the claimant should be expected to move from his home at which he has a tenancy, to a placement of the defendant’s choosing in circumstances in which no care plan has been provided by the proposed non-specialist care provider does amount to an unlawful interference with the claimant’s rights to respect for home and private life.

Here is the link to the case once again. All review team staff and assessors and care planners in councils receiving people from elsewhere into their area into ordinary accommodation under the continuity provisions – please take account of the principle in this case. Those moving into supported living settings where their needs can only be met by virtue of the availability of personal care will retain continued ordinary residence rights with their OLD authority, under the Care Act, as long as the previous council writes the magic words on the care plan. See other blog posts on ‘ordinary residence’ on this Blog!

 

Thoughts on the Cornwall Judgment

Having been wrestling with practitioners’ bemused questions about the state of play on Ordinary Residence over the past few months, I share Belinda’s relief at the common sense shown by the Supreme Court in finding Wiltshire liable.

This clarifies the situation in several ways which I think local authorities should find helpful in working out the liable council. As anyone who has been to CHL training will know, Annex H of the Care Act Guidance says that local authorities should:
“start from a preliminary assumption that the young person remains ordinarily resident in the local authority in which the child was ordinarily resident when they turned 18.”

The decision helpfully clarifies that that starting assumption cannot be too readily displaced in the case of a young person who lacks the capacity to decide their own residence.

The Supreme Court has helpfully confirmed that:
(1) An area cannot be someone’s ‘base’ without factoring in whether they do or have ever actually lived there
(2) Ordinary Residence cannot be based on the residence of a decision maker (parent or deputy) rather than the subject themselves
And also sorted out that for those who lack capacity to make residence decisions:
(3) Periods of out of area placement whilst a child are not enough by themselves to change ordinary residence, even where these are prolonged

Those of us who have spent months wrapping our brains around these issues are relieved by the clarity and coherence of this position. In many cases councils will find it easier to recognise when they should simply accept that they are responsible (though it remains to be seen whether all will do so in practice!). Councils and providers can heave huge sighs of relief and hopefully develop high quality, community based care, appropriate to the needs of individuals without fear of ‘dumping’.

This decision is hugely in the interests of young people who lack such capacity (many of them autistic). The clarity thus provided should cause local authorities who have such young people in their care to finally accept that they are, in most cases, going to continue to be responsible for them throughout their lives and to focus on the suitability of placements, rather than on which side of geographical borders they lie. It should very much improve transition planning for these young people – the fractured and frequently argumentative nature of which has often been a cause for concern.

The young people at the heart of these cases are not just costly burdens to be looked to for arbitrary savings in council budgets. They are people, not packages or exports to be fought over. I fear there are still O/R battles which remain to be fought through the courts, as Belinda highlights. But at least the outcome from this one is legally coherent and clear enough to sound a warning to councils about legally and ethically dubious attempts to export young people viewed as too costly.

Focusing on the legal nature of the attorney or deputy’s role as AGENT for the person lacking capacity

XZ v PUBLIC GUARDIAN (case reference: [2015] EWCOP 35)

This case makes clear that the powers of the Public Guardian in relation to refusing to register Lasting Powers of Attorney (LPA) are limited to declining to register LPAs containing provisions which cannot actually be given legal effect in light of limitations within the Mental Capacity Act, the regulations or the common law of agency. The power to refuse registration cannot be used to exclude from registration LPAs which are merely likely to be of limited practical usefulness.

In this case, the donor of a complex LPA (Z) wished to place lengthy restrictions and limitations on his attorneys. His intent was to ensure that he could not be judged to lack capacity without robust and sustained evidence: undisputed psychiatric opinions subject to review by his close friend and the passage of a period of 60 days. Additionally he wished to limit the scope of the attorneys’ powers to emergency actions in situations of a temporary loss of capacity.

MCA 2005 Schedule 1 part 2 paragraph 11(2) permits the Public Guardian to refuse to register an LPA (and instead refer to the Court of Protection for a determination under s.23) where it contains a provision which “would be ineffective”.

The judgment defines “effective” in this section as being limited to the legal efficacy of a provision.

So, for example, a provision which purported to permit an attorney to vote in public election on behalf of the donor (contrary to s.29) would be legally ineffective because the provision could not lawfully be given effect under Election Laws.

Other examples of provisions which would be ineffective (in the legal sense) as part of a power of attorney would include:

(a) a provision which purported to permit the attorney to make gifts which go beyond the statutory restrictions found at section 12 MCA 2005.

(b) a provision which purported to go beyond what a person can ever even effectually do by an attorney (such as make a Will).

(c) a provision which purported to permit the attorney to consent to a marriage on behalf of the donor (see MCA section 27(1)(a)).

Examples where the law of agency would limit the role would be taking a degree for someone, in their name, or turning up for a driving test, saying that you were their agent. Or arguing that the person should be regarded as the employee, when they were clearly incapable of understanding that the employment role is a personal one. Some things are regarded by the law as ONLY capable of personal performance.

The Public Guardian argued here that the LPA restrictions so limited the usefulness of the LPA as to make it ineffective.

However it was held that practical difficulties in using an LPA, such as attorneys having to  prove that the donor does not have mental capacity each time they try to use the LPA, are not sufficient to make an LPA “ineffective” within the meaning of Schedule 1 part 2 paragraph 11(2). The Public Guardian does not have the power to override the wishes and judgement of the donor and impose its own view of the wisdom or usefulness of the proposed provisions.

The Public Guardian had not been able to identify any conflict between the provisions of Z’s proposed LPA and any specific provision of the Mental Capacity or the LPA, EPA and PG Regulations, or the common law of agency that has been infringed by the provisions in XZ’s LPA. Therefore the Public Guardian was under a duty to register the LPA.