Procedural Fairness in social care

All public bodies are subject to the legal rules of procedural fairness in their decision-making processes. The trouble is, the content of those rules is as long or short as a piece of string – the courts have always looked to the context and the significance of the decision for the individual, and the administrative needs of the public body in question, before indicating just what they think counts as ‘fair’ in a particular situation.

 

What is clear is that if a public body falls short of that standard, the decision it has made will be void, and it will have to be made again, after a proper process has been followed.

 

Health and social care decisions are at the top end of the scale of significance in people’s lives, but at the same time, the vulnerability and sheer number of people who rely on these services means that no-one wants to over-formalise assessment or decision-making processes – it would be intimidating, and cause delay for all concerned.

 

The procedural requirements which must be followed can arise either from specific statutes which regulate things like consultation, or the process by which a decision is made; or from government-issued Directions or guidance – or from the common law, which has been used to impose minimum standards of fairness on public bodies, in light of the overall importance of the decision for the person affected.

 

Another alternative source of fairness requirements is article 6 of the European Convention, now scheduled to the UK’s Human Rights Act 1998, but it only applies if what is being decided determines a civil right or obligation, and it is our view that access to, and eligibility for, most health and social care services, will not be regarded as a civil right by the court. This seemingly controversial statement is not meant to be a political statement, but a legal one, and can be supported in this way.

 

If we take s117 of the Mental Health Act as an example – an aftercare package is a right for all those qualifying as leaving hospital from under a compulsory section of the Mental Health Act. Those people will have a civil right in play, because their status is not a matter of discretion but of objective fact; and they have a right to enforce that duty through the Administrative Court, which would waste no time in telling the liable authorities to get on with their duty. But the content of their package still turns upon professional opinion. Whilst the client’s participation in the process may well be crucially important, it does not mean that the courts would regard it as necessary that there should be an independent tribunal to which the contents of a proposed s117 discharge could be appealed.

 

Even if the content were to be seen as a matter raising a civil right, it is more likely than not that the existence of the judicial review courts in which a care plan could be challenged on grounds of unreasonableness etc. would satisfy the requirement of an independent tribunal for article 6 purposes. This is because this is the line usually taken by the ECtHR when the decision being re-considered turns on matters of specialist evaluation or judgment.

 

Statutory provisions

There are some statutory requirements for consultation in the community care framework, and a few provisions relevant to procedure, which might be analysed by the courts as mandatory or discretionary, in terms of the consequences for the resulting decision, if they are not followed. The decision taken will be invalid, if the consultation was mandatory, but not necessarily if it was discretionary.

Breach of legitimate expectation

This area is dealt with as a topic in its own right in the database, but it focuses on the concept of it being unfair to go back on a promise or long-standing practice, without a very pressing reason for so doing, and without giving people affected by that proposal a chance to make representations about the matter.

Bias/Conflict of Interest

As a general rule, public authorities are under a duty to act fairly in their decision making. This reflects the so-called rules of “natural justice” which require the maker of a decision to give prior notice to persons affected by it and an opportunity for those persons to make representations, and to disqualify him/herself from acting if he/she has a direct pecuniary or proprietary interest, or might otherwise be biased. A decision taken in breach of the duty to act fairly will be beyond the powers of the authority.

A person is generally disqualified from participation in a decision making process if there is a real danger that he or she would be influenced by a pecuniary or personal interest in the outcome of the decision. This is a principle of general application in public law.

Any pecuniary or personal interest has to be declared and a decision maker having such an interest is not entitled to participate in the decision making process unless that interest is too remote or insignificant to matter.

There is no general rule requiring a decision maker who has an interest in an issue not only to declare that interest but also to absent him/herself from the meeting while that issue is being discussed, but since participation is a matter not of form but of substance, withdrawal is generally wise. Depending on the facts of a particular case, the mere declaration of an interest, followed by abstention from discussion or voting, may not be enough to negate the impression of participation in the decision making process.

In general, the participation in a decision making process of a single decision maker with a disqualifying interest will vitiate the decision arrived at. This is all the more so where that decision maker is the Chair of the meeting at which the decisions are taken.

Conduct of a decision-making process

The common law requires that people get a fair chance to disabuse any decision-maker from an impression which may lead to an adverse decision being made against the person. Thus if a care manager has reason to believe that an appointee is siphoning off a part of someone’s benefits, or that a client is over-exaggerating their perception of their own needs to maximise the care package for personal convenience, the person affected has to be given a chance to put that impression right before other action is taken. The emphasis in the new Single Assessment Guidance on maximising opportunities for participation of the user in the process should minimise the risk of breaches of this nature.

Reasons

Both law and guidance from central government now often require reasons to be given, for decisions made by public officers. Examples are found in the guidance about the assessment of the registered nursing contribution to care, in the context of Free Nursing Care in a nursing home; complaints panels determinations, and when making findings about deliberate deprivation of assets to avoid social care charges.

In Calderdale Metropolitan Borough Council, ex p Houghton, a consent order was agreed in settlement of a judicial review action, when the council accepted the need to re-hear an appeal against the reasonableness of a charge. The council also agreed to provide the claimant with written reasons for the decision on that appeal, identifying what evidence was accepted or rejected, and dealing with all the issues raised, showing how any balancing exercise required by the in-house guidelines applicable to the sub-committee concerned had been conducted.

In Islington London Borough Council ex parte Bibi the local authority tried to cure a defect in a decision letter by later providing supplementary information in the form of an affidavit but this was rejected by the court. The court found that the additional information was not merely “elucidation and confirmation “as claimed by the local authority, but added materially to the authority’s reasons for its decisions. The moral here is get the reasons right first time!

In addition, the case law in this field has already established that there must be very cogent reasons given if

A Director is going to depart from the findings of a Complaints Panel – see Wigan MBC ex p Tammadge and Avon County Council ex p M

An authority is going to depart from government guidance – Islington LBC ex p Rixon

 

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