Archive for Care and Health Law Cases

Antoniak v Westminster City Council

Well, goodness me, what a Happy New Year! A council finally got successfully judicially reviewed for failing to follow the Act and statutory guidance with regard to ignoring human assistance in meeting identified needs (it also managed to fail to follow the logic of its own forms, incidentally!).

In Antoniak v Westminster City Council, the claimant was a young man with intermittent psychosis and related housing issues, who’d also been run over, hospitalised for a long time, and was now wheelchair bound.

He was ultimately temporarily housed under the Housing Act, physically within another London borough, once his immigration status had been clarified and permitted recourse to that legislation.

Using what was no doubt a strengths-based approach, the assessor fell into the trap of suggesting that resources to which he had current access, were such as to reduce the impact of his inabilities on his wellbeing, so that he was ineligible for support.

That is not the law.

If one’s assessment has been formally paused to see what prevention and reduction can do for reducing impact or inability in a long term reliable way, that is one thing, and is permitted.

But if one’s eligibility falls to be determined at any particular date, that can only be after one’s NEEDS have been identified and gathered in, and the Guidance is clear that human assistance must be ignored at that point, for the purposes of the next decision in the statutory linear approach to assessment: ie the inability to achieve test, and the impact test, for eligibility purposes.

He was found by his assessor to be unable to achieve in two or more domains, but the impact was not regarded as significant, because it either was being met or ‘could’ be met, if he moved, by charitable resources.

Oh dear!!

The assessor had said ‘he currently has no needs in this area’ (referring to support with cleaning and maintenance, and meal preparation) because he could get them met by charitable support and they were being met currently because of the nature of the accommodation he was then IN.

The council did NOT say that he was eligible but that nothing was needed, because of what could be obtained locally. If it had said THAT, that might have been defensible, but of course the care manager would still have had to have done a care plan, because that follows on unavoidably from a finding of eligibility. That plan would not have been able to be signed off unless the council was sure that the services they were signposting too, just hopefully like, would actually meet the need.

In the judgment, a Mr Ockleton, sitting as a judge of the High Court, said this:

24. …it is clear both from the structure of the Act itself and from assumptions which might be made about the general utility of the assessment process, that the word “needs” is to be interpreted in such a way as to ignore any existing way in which needs are being met.

…Part 1 of the Care Act makes the individual, and the individual’s wellbeing, the starting point of the delivery of such services as are required. In this context it would be surprising if a needs assessment were not also intended to be primarily about the individual, rather than merely about some residuary part of an individual’s needs that were not currently being met…

…It follows that a needs assessment will not fulfil the requirements of s.9 if it does not include all the individual’s needs, whether currently being met or not. It follows also that the determination of the eligibility criteria will not fulfil the requirements of s.13 unless the eligibility of needs currently being met is determined, as well as the eligibility of unmet needs.”

…[since] “the question of impact on his wellbeing should have been made without regard to the way in which needs were being met at the date of the assessment”, the judge thought that the appropriate remedy was a declaration that the assessment did not discharge the defendant’s duties to the claimant under sections 9 and 13.

The judge refused to make a mandatory order compelling the defendant to draw up a Care and Support Plan and to provide the claimant with care and support forthwith because there was, in light of the judgment, no valid needs assessment, and a Care and Support Plan emerges out of the identification of eligible needs following a needs assessment.

He also acknowledged that Westminster may not have then have owed any duty to the claimant under the Care Act, because of his having been housed in Islington – the law is clear that the liability for Care Act needs moves with the client, even if the accommodation provided under the Housing Act is temporary. The invalidity of the prior assessment still mattered though, because of the provisions in s37, relating to those with care needs who move between local authorities.

Points for councils doing a Three Conversations or Strengths-Based approach

It’s public law that you want to think about, in light of this case.

You wouldn’t want your whole assessment workload to have be re-done, all over again, we are surmising – but that is what invalid assessments, once judicially reviewed, IMPLY. And there is now a right to restitution for periods of invalidly assessed needs!

That means money will have to be paid and will reduce all the savings that interim management consultants will have attracted high salaries for promising, by institutionalising go-slows, informal conversations about needs, and strategies based on persuading people or carers that there’s no real point in being assessed…. that is, a kind of rule of law karma, it seems to us.

The Care Act made the identification of needs, and then their status in relation to the eligibility threshold, and then care planning for meeting them, an essentially linear task, although the vision was that social workers and other staff would be well enough trained to be able to do generic and whole-family based and holistic assessments, in time.

CASCAIDr’s management’s Care Act training since early 2015 has made it clear that whilst signposting needy people to resources that could help, and networks that might help, is all very well at the first contact and pre-assessment stage, the solutions being suggested do have to be workable, and accessible, in terms of the known characteristics of the applicant for services.

A person might be having ALL their needs met by reason of funding them, privately, or lucky enough to have a wrap around family network, but we are all expected to know that we cannot assume that a person would carry on spending their money or a family, their time, in that way, and that is why those factors have to be explored and do not go to eligibility, but only to the duty to meet need, after proper and lawful probing and thinking!

When a person who’s got some current support or a person who’s engaged with prevention, next comes back for their assessment ‘proper’, then if the current support or preventive measures were short term in nature, it is just possible that these inputs may indeed have helped mitigate a longer term or more chronic need; but it’s equally possible that they may just have put a bandaid on a problem whilst they were available, and that as soon as they cease to be available, the person’s situation will rocket way up there again, in terms of impact.

It must be obvious that targeted prevention does not go on forever (whether charitably provided, for free or paid for by some or other agency) because new people are being signposted to the services all the time.

It’s helpful to think of this as one would regarding the well managed need principle for CHC status: if the problem has been managed away for good, then the need can be regarded as having been resolved; but if the prevention or other human assistance needs to be funded on a longer term basis or is unreliable, and the problem would pop up again without it, then the need still exists. The ‘inability to achieve’ test is explicitly defined to exclude the availability of human assistance, and thi case establishes, as predicted, that the impact test must be considered in precisely the same vein.

A link to the case can be found here:

https://www.bailii.org/ew/cases/EWHC/Admin/2019/3465.html

Please share:
error

R on the application of SH v Waltham Forest LB

Facts of the case

SH travelled to the UK in 2012 having fled trafficking for the purposes of sexual exploitation. She was granted refugee status in 2014.

She applied to WF as homeless in September 2014. WF accepted the main housing duty and after was eventually provided with permanent accommodation in Ilford in May 2016.

In May 2017, SH was served with a no-fault eviction notice requiring her to vacate the property.

In August 2017, SH was offered and accepted a property in Tottenham. SH and her daughter had considerable issues with the property, in particular the fact that the communal grounds to the flat being used as an open air brothel where sexual activity could be seen by SH and her daughter. Evidence from the school and a psychiatrist’s report had provided evidence on the effect on SH’s mental health and her daughter’s development.

In July 2017, SH approached WF asserting that she was homeless.

In October 2018 WF made an offer of a property in Kettering under section 189B(2) in discharge of its relief duty.

SH refused the offer.

The issue in dispute

The issue before the court was whether this was a re-application by SH, in which the main duty under section 193(2) was still owed, or whether it was a fresh homelessness application, in which case the ‘lesser’ duty under section 189B(2) (to take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least six months) was owed and had then been discharged once SH refused the offer.

Central to this issue was whether the offers of the properties in Ilford and Tottenham were made in accordance with the provisions relating to private rented sector offers, contained in section 193 (7AA) and (AB) of the Act.

The Law

The section 193 duty can be discharged under section 193(7AA) of the 1996 Act if the applicant, having been informed in writing of the matters mentioned in section 193 (7AB) accepts or refuses a PRS offer.

Thus, to be a valid discharge of the section 193 duty, the following conditions need to be met:

There has to be an offer of a property in writing, which warns the applicant of the matters in section 193(7AB), namely:

  • The possible consequences of refusal or acceptance of the offer;
  • The right to request a review of suitability;
  • The effect under section 195A of a further application to an authority within 2 years of acceptance of the offer.

In addition, the property has to comply with the conditions in section 193 (7AC) namely,

  • It has to be an AST for a fixed term of at least 12 months,
  • It has to be made with the approval of the authority in pursuance of arrangements made by the authority with a view to bringing the authority’s duty to an end.
  • The authority has to be satisfied that the property is suitable (section 193 (7F).

The Court’s decision

Given that WF could not produce a copy of the offer letter, the court concluded that the offer letter for the Ilford property had not been sent and therefore that the offer did not comply with section 193 (7AA) and (7AB) of the Act and that therefore the duty under section 193(2) was not discharged in May 2015.

In terms of the Tottenham property, the court found that the property was never suitable accommodation. The court stated that given the particular characteristics of SH and her daughter, the offer should never have been made. It therefore concluded that as the Tottenham offer did not meet the statutory requirements of section 193 (7AA) and (7AB) and that therefore the duty under section 193(2) was not discharged in August 2016.

The court decided that section 189B(2) did not apply to AH because she was still owed the section 193(2) duty following her original application in 2015. The application made in July 2018 was not a fresh application. By regulation 4 of the Homelessness Reduction Act Regulations 2018/167, the amendments made do not apply in relation to an application for assistance made under section 183 of the Housing Act 1996 before the 3rd April 2018.

Learning Points for Advisers

Most advisers will be aware that the Localism Act 2011 allowed for local authorities to discharge their main housing duty by offering an assured shorthold tenancy in the private sector for at least 12 months.

This decision illustrates the importance for advisers of checking that a PRS offer made in discharge of the main housing duty has been validly made, not only in terms of the suitability of the accommodation but also by checking that the contents of any offer letter meet the requirements of 7(AB).

This will be particularly relevant in cases, as with the above case, where applicants have been evicted from a PRS property offered before the 3rd April 2018 and are now re-applying as homeless to the local authority.

Please share:
error

Guiste v The London Borough of Lambeth

Facts of the case

This was an appeal by the appellant, Mr. Guiste, of a decision by the County Court upholding Lambeth’s decision that he was not in priority need for homelessness accommodation.

Mr. Guiste suffered from potentially serious physical and mental health problems. He had a thyroid condition called hypoparathyroidism, which if untreated by prescription medication, could lead to convulsions.

In dispute in this case was the seriousness of the appellant’s mental problems. On the instruction of his solicitors, the appellant was examined during a lengthy face to face interview by Dr. Freedman, a Fellow of the Royal College of Psychiatrists with over 20 years of providing reports for the courts.

Mr. Guiste had a history of cannabis use and there had been previous incidents of self-harm and suicidal thoughts. The psychiatrist’s report noted that the appellant suffered from anxiety and depression and was at risk of harming or even killing himself due to command hallucinations. He did not understand the importance of taking his medication and needed help from his mother to manage his finances. She concluded that, if made homeless, it was unlikely that Mr. Guiste would take his medication, his mental health would deteriorate leading to a greater risk of self-harm and suicide.

Lambeth “outsourced” the provision of medical advice in housing cases to an organisation called NowMedical Limited. Two psychiatric advisers employed by NowMedical prepared reports for Lambeth about Mr. Guiste’s application for housing, but as is standard practice in such cases, neither of them examined or interviewed Mr. Guiste and for an unknown reason did not take up the opportunity to discuss Mr. Guiste’s case with Dr. Freedman.

The Legal Test

The court accepted that the review officer, when considering the issue of vulnerability, had considered the correct legal principles as set out in Hotak v Southwark LBC and Panayiotou v Waltham Forest LBC, namely;

“The assessment should be based on whether when compared to an ordinary person if made homeless, the applicant would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer or be at risk of suffering such that the harm or detriment would make a noticeable difference to his ability to deal with the consequences of homelessness”.

Submissions by Lambeth asserted that the relevant question of ‘functionality’ is whether the applicant’s circumstances would affect his functionality so as to make a noticeable difference to his ability to deal with the consequences of homelessness.

The court rejected adding an extra layer of complexity into a test which is already far from simple. The judge confirmed that “Lewison LJ’s observations (in Panayiotou) on functionality were made in the context that there must be a causal link between the particular characteristic relied on under section 189(1)(c) and the effect of homelessness.

The decision

In his judgement, Lord Justice Henderson noted that the reviewing officer had failed in her review decision to provide cogent reasons for why she had favoured the evidence of NowMedical over the evidence of Dr. Freedman. This was despite the fact that Dr. Freedman was better qualified, had addressed her mind to the specific legal question, and most importantly, had based her opinion on a personal examination of Mr. Guiste.

The court found that such a failure amounted to a breach of the principles of rationality and fair decision making.

However, the court also concluded that, based on the evidence before it, that the issue of priority need must not inevitably be determined in Mr. Guiste’s favour. It therefore did not substitute its own decision of priority need, but instead ordered that Lambeth should reconsider the issue of priority need by holding another review by a different officer.

Learning for advisers

This case highlights the importance of advisers obtaining medical evidence from an appropriately qualified medical professional to support their client’s case wherever possible. It is also vital that the adviser sets out the correct legal test for the professional and asks them to address this directly.

This case also highlights that, in all but the clearest of cases, the courts will be reluctant to substitute their own decision for that of a review officer. The court’s role is as a guardian of fair and rational decision making rather than as an arbiter of the facts.

A homelessness officer is supposed to compare the specific applicant with an ordinary person faced with homelessness when considering vulnerability. 

Rother DC v Freeman-Roach [2018] EWCA Civ 368 held that the ‘ordinary’ or ‘average person’ should be considered to be ‘ordinarily robust and healthy’.

The Supreme Court, in the combined cases of Johnson, Hotak and Kanu, as to how to approach this question, held that a housing authority should consider whether the specific applicant would suffer or be at risk of suffering harm or detriment which the ordinary person faced with homelessness would not suffer or be at risk of suffering, such that the harm or detriment would make a noticeable difference to their ability to deal with the consequences of homelessness. Many homeless persons have mental health and substance misuse problems, but the test is not how would the average homeless person with these problems cope? That was the approach that Hotak in particular put an end to. It was then a very hard test to qualify as vulnerable, under, if one had to be appreciably worse than an ordinary homeless person, when an ordinary homeless person may have experience on the street, and a swathe of existing issues. So the mental health and substance abuse issues of many a specific applicant should be enough to make them vulnerable.

Experience on the streets might be used to suggest that their history of street homelessness without particular harmful effects makes that person less vulnerable than the ordinary person, but that would have to be considered on a case by case basis.

An ordinary person, if made homeless, might have an initial disadvantage, in terms of lack of experience, but that person is not going to have severe physical or mental impairments, or substance misuse issues which are foreseeably likely to raise a person’s level of vulnerability when living on the streets.

Geoff Davies, CASCAIDr commentator

Please share:
error

Secretary of State for Work and Pensions v MM (Scotland) [2019]

This case concerned the application of one of the criteria for Personal Independence Payment: ‘Engaging with other people face to face’, a type of need that occurs most commonly amongst those with mental health needs and/or neurodevelopmental conditions (such as Autism).

The two central issues were:

(1) What “social support” means and how it differs from “prompting”

(2) Whether “social support” only covers help given during an interaction or whether help given in advance is also relevant.

The criterion is represented below.

Activity 9: Engaging with other people face to face

Descriptor 9b: Needs prompting to be able to engage with other people (2 points)

Descriptor 9c: Needs social support to be able to engage with other people (4 points)

The Decision of the Court

It is inherent to the structure of PIP that, broadly speaking, each descriptor reflects a greater degree of disability than the previous descriptor.

The Social Security (Personal Independence Payment) Regulations 2013 (“the Regulations”) Schedule 1 defines ‘social support’ as:

“support from a person trained or experienced in assisting people to engage in social situations

It was the training or experience required by the supporter rather than the nature of the support itself which differentiated ‘prompting’ in 9b from ‘social support’ in 9c. A need for support from any person (including a friend or family member) could qualify as ‘social support’, but only where it was necessary (rather than merely desirable) for the support to be provided by a person with relevant training or experience (rather than merely any person with whom the claimant was familiar or had a positive relationship) could it count for 9c purposes [paras. 33-35]. Thus the

“twin requirements of necessity and relevant training or experience” [para. 34]

differentiated between “social support” and “prompting”, even though

“the nature of the support provided might not differ between 9b and 9c” [para. 35].

(2) Lady Black dismissed the Secretary of State’s argument that only a need for support to be provided face to face during the engagement itself could satisfy a relevant descriptor. In her view, such a narrow construction of ‘support’ would

“stand in the way of other means of support which work for the particular claimant, and would also be likely to impede attempts to improve the claimant’s abilities to handle matters without support at all, or with diminished support.”

[para. 41]

She also pointed to the wide range of types of interaction included and identified that the physical presence of a supporter may be inappropriate and/or counter-productive in such sensitive situations as a medical examination or romantic encounter.

It was fundamental to the requirements for PIP eligibility that the claimant’s condition must be relatively long-term or permanent (lasting at least 12 months) and that each specific need must be present at least 50% of the time. The need itself must, therefore, be a continuing need (rather than a past need from which the claimant has recovered or is improving), however:

“There is nothing in the wording of descriptor 9c, or the definition of “social support”, to require actual presence of the supporter during the engagement, nor yet to require that the support is timed to coincide with the engagement, rather than being provided in advance, or indeed afterwards.” [para.43]

Comment

Lady Black resisted the temptation to specify in more detail the types, nature, timing or duration of support which would or would not be sufficient to meet a descriptor and decided that reading in a need for a temporal or causal link between the support and the engagement was incorrect. ‘Need’ was not a relative term. If only trained or experienced help would be sufficient for the claimant to be able to engage with other people face to face, then they would satisfy 9(c) “social support”. If any familiar, well-meaning but inexperienced support would do, then they would not (although 9(b) might still be satisfied). She concluded:

“Given that social support is likely to take many different forms, depending on the individual needs of the claimant, it is undesirable to attempt to prescribe, in the abstract, which other forms of support will be sufficient. It will be a question of fact and degree, and is something that will have to be worked out on a case by case basis, by those with expertise in making assessments and decisions in relation to claims, keeping the wording of the provision firmly in mind.” [para. 46]

In practice, of course, short of their case being considered in detail by the Supreme Court, most claimants will have to take their chances as to the expertise and knowledge of the wording of the provision of the particular assessor and decision-maker assigned their claim. Nevertheless, this judgement should be of assistance (at least at FTT level) in clarifying that the support is needed by many individuals with relevant needs where it has perhaps been denied before.

Although this case originated in Scotland, this criterion is exactly the same in England.

Full text at: https://www.supremecourt.uk/cases/docs/uksc-2017-0215-judgment.pdf

Please share:
error

A council successfully defends a cut to a Care Act care plan by phasing in a big cut, slowly


CASCAIDr’s CEO has long suggested during training sessions that mincing towards meanness is much harder to challenge, even with use of public law principles, in the context of adults’ social care or CHC services, than making a giant cut overnight.

If commissioners aren’t care aware, and care managers and reviewers are risk averse or incentivised to make immediate savings, of course too MUCH risk or too LITTLE risk will be factored into any programme of cuts.

Such is the impact of no longer training social work students in how LAW actually WORKS, or front line public sector staff and senior managers in “difficult conversations”, it is suggested.

However, in a recent case, Lewisham Council has shown that massive cuts can be justified, as long as they are implemented slowly and the impact is genuinely monitored.

That, we have to say, is defensible social work, rationing public money properly, but it is not the modern way.

Making a judgment as to a Court’s reaction, in cases like this, is one of the reasons why CASCAIDr exists. This would not have been a case that we would have been likely to lend our support, all the way to court, although just as in the pre-Act Cambridgeshire, and post-Act Oxfordshire cases it seems that it was the proceedings that succeeded in MAKING the council do the job properly in the end. What a waste of resource, is all we can say.

In the 2018 ‘VI’ case, R (VI) v Lewisham LBCthe claimant was a long-term recipient of social care services – firstly, commissioned services and then through direct payments.

She was a 55-year-old woman with muscular dystrophy, who was bed- and wheelchair-bound and who required carer support for all personal care. She had reduced dexterity in her hands. She was continent, and used to wearing pads during the day and night if no carers were expected, although she did not like having to do so and the pads sometimes overflowed.

She’d been used to having 104 hours a week for a number of years including a specification for double handed care 3 times a day and night time care through a sitting service. Then a hoist was fitted, but no change was made; the council very fairly openly admitted to its failure to review being the reason the planned cut was not made when first assessed for.

En route to the final plan for the cut, the council had said this in writing, rather unfortunately:

“Lewisham is unable to provide an overnight service to enable you to continue to be supported to the toilet during the night. Lewisham has limited resources and that requires that we ensure we make the best use of the resources for all clients. Lewisham social services believe that pads are the solution to managing incontinence over the night time period and that is an approach used for all clients with similar needs. It has therefore been recommended that your night time need should be managed through the use of incontinence pads. The use of pads is considered a practical and appropriate solution to your night-time toileting needs.”

The judge agreed that a decision in the terms of that sort of communication could not amount to an assessment complying with the Act, because it was a generic decision relating to the management of incontinence rather than one reflecting a consideration of the Claimant’s individual needs and well-being.

[We agree and often use this argument: that’s a policy change about what is appropriate or not in relation to the duty to meet needs and we don’t see why it should not have been consulted over. But in light of the McDonald case, if it HAD BEEN CONSULTED OVER PROPERLY, it cannot be said that the policy was automatically unlawful, however – it all depends. What is clear is that it would not be lawful if it had been automatically appliedthat would have been a fetter of discretion.]

By 2016, Lewisham had completed a care and support plan that reduced the Claimant’s hours to 52 hours a week.

In practice, though, even now, no reduction was implemented, apparently due to administrative oversight and the Claimant continued to receive direct payments at the rate of 104 care hours a week.

[It is perhaps no wonder that people despair of social care ever running efficiently with cases such as these!]

What happened eventually?

By 2018, the proposed cut was going to take the care down to 40 hours a week, mostly by removing the night time hours allocated within the 104 hours.

The claimant alleged that Lewisham’s latest review conclusion that her needs for care and support could be met through a reduction of over 50% in her carer hours from what it had once been set at, was irrational.

It was said that since her condition was degenerative, cogent reasons were therefore required for concluding that her care needs had reduced from the previously assessed level.

The basis on which the Defendant asserted that the Claimant’s needs had hitherto been ‘over-provided for’, was ‘flawed’, it was asserted. Over- generosity can be a justification for a cut, of course, because it’s all coming out of public money, and all the council need ever do is to meet need appropriately, not aspirationally!

The Claimant also contended that failure to co-operate with NHS services, particularly over occupational therapy and physiotherapy, had flawed the assessment of the Claimant’s needs and ignored the best way to prevent care needs arising in the future.


An MDT meeting had ultimately been convened at the Claimant’s home, attended by the Claimant, two social workers and two district nurses.Ms Dawson’s typed note of the “MDT Outcome” stated as follows:

“Trial 6 week period agreed for reduction of care package, removing the night time care of 7 hours for incontinence support, pad changing and body turning with close monitoring from DN [district nurse] x2 weekly.

Exact plan to be confirmed and agreed alongside start date with DN and [the Claimant]. [Direct payments] team to be informed of change to care plan.

To be reviewed as ongoing via DN assessments/visits.”

This plan was to be reviewed at 6 weeks by the social worker, with district nurse visits twice a week in the meantime to monitor and record.

In August the council completed a care and support plan for the Claimant including a reduced care package of 40 hours a week, based on four one-hour single handed personal care visits a day (3 visits on Sunday) (27 hours in total), 7 hours a week meal preparation, 3 hours weekly domestic and shopping support and 3 hours weekly community support.

The Claimant made the point that the 22 August 2017 plan and 23 August 2017 letter flowed from the generic June 2016 decision and did not attempt to assess the impact on the Claimant’s well-being of the removal of her night time care.

But the social worker’s evidence was as follows:

i) The incontinence service had recommended the use of more robust pads in 2017, which were supplied.

ii) The Claimant had not sought medical advice about faecal difficulties, and there was no evidence of her having raised this with social workers or the occupational therapy service. There was no sign of any link between such episodes as had occurred and the reduction in the care plan.

iii) There was no evidence of pressure sores occurring since the care plan reduction. Further, “District Nurses have been very closely involved, their professional opinions have been sought in order to be confident that there are no significant risks of pressure sores, that toileting can be managed through use of pads and a specialised mattress used to address the issue of positioning and assist pain management, and that the Claimant is not being placed in unnecessary risk.”

In March 2018 the Defendant finalised the care needs assessment and sent it to the Claimant.

[i] “[The Claimant] was formally diagnosed with Muscular Dystrophy … in 2007. … It was reported that there is ‘no treatment or cure … and the condition is slow progress … won’t be ambulant … will need a wheelchair.”

[So the fact of degeneration was clearly acknowledged as relevant to considering what was needed.]

[ii] “[The Claimant] was assessed in June 2016 as she was receiving a 104 hours weekly care package. This identified double handed care. However, through further assessment and review discussion [the Claimant] confirmed that she did not use the service as double handed as it was not needed and instead had used the hours to implement a night time carer service seven days a week.

The view presented by the DNs at the MDT meeting was that given [the Claimant’s] equipment and level of mobility, removing her night care allocation would not put her at significant risk of developing pressure sores.

To manage risk, we agreed that the DNs would visit twice weekly to monitor pressure areas. This was also to manage [the Claimant’s] understandable anxiety. Currently the district nurses continue to visit [the Claimant] twice weekly. All their reports state that her skin is intact and no evidence of pressure sores.”

Lewisham therefore contended that the Claimant’s stance amounted to little more than a disagreement with the outcome of the assessment. A careful reading of the assessment demonstrates that it:

  • was completed with multidisciplinary input from both health and social work professionals;
  • fully involved and consulted the Claimant;
  • had clear regard to the factors as required by section 9(4);
  • complied with the provisions of the Act, regulations and guidance; and
  • took into account all material considerations.

Lewisham also contended that the woman had failed meaningfully to consider any alternative more suitable avenue for dispute resolution, including ADR or by exhausting the Defendant’s own complaints process and, if necessary, escalating any complaint to the Local Government and Social Care Ombudsman.

[That submission was not taken up by the judge, and we think that that is a further indication that the courts will not often be persuaded to regard arguable cases as able to be resolved by way of a different jurisdiction that does not encompass matters of illegality.]

The judge agreed that certain of the statements in the assessment are expressed in a somewhat conclusory way:

[x] (“Joanne explained that there is no evidence suggesting that there is a need for this additional intervention“)

[xx] (“It was explained that this is not based on assessed need and therefore not approved“).

“Those passages might be said to lend support to the Claimant’s submission that the decision-maker has taken the 2016 and 2017 decisions as read, without actually performing an assessment of the Claimant’s needs and the impact on her of the reduction in care.”

The point might also be made that passage [ii], referring to the June 2016 decision, appears to be erroneous in assuming that the Claimant herself had used spare care hours to implement night care, whereas in fact the 2011 and 2014 assessment both concluded that the Claimant required night care.”

“Viewing the assessment in the round, I consider that the decision-maker has not simply adopted the 2016 and 2017 decisions but has had regard to all the current circumstances in considering the Claimant’s needs and well-being.”

“The assessment acknowledges that the Claimant’s condition is degenerative (passage [i]). It notes that the trial removal of night care in August 2017 followed consultation with district nurses. It considers the evidence as it currently stands in relation to the Claimant’s toileting needs, including the series of reports from the district nursing team referred to in passage [xiv] reporting an absence of pressure sores and intact skin.

“The Defendant has also recognised that this is a matter which needs to be kept under careful review, and has continued to do so with weekly district nurse visits and periodic social worker visits.”

“The fact that the Claimant complained of wet leggings after outings on Sundays of approximately 5-5½ hours highlights the need for close monitoring of her needs at night during a longer period.”

“However, viewing the assessment as a whole it is not possible in my judgment to conclude that the Defendant’s approach has been irrational or that it has failed to have regard to the prescribed factors including the Claimant’s individual well-being.”

The judge said, with regard to pain, that it was noticeable that physical and mental health, of which pain relief and pain management would form part, were not included in the list of specified outcomes forming part of the eligibility criteria for Care Act purposes (see § 56 above). However, he said, “physical and mental health and emotional well-being” is one of the well-being factors referred to in section 1(2) of the Act and counsel for the Defendant was right in my view to accept that pain is therefore a relevant consideration when taking a decision under the Act.”

[CASCAIDr would comment here that the very definition of achieving the domains in the criteria includes reference to achieving but only with significant pain, anxiety or distress, or endangerment to self or others, or a much longer time to achieve the task, so it is ridiculous to suggest that such things are not part and parcel of task of considering the best value way of meeting ‘outcomes’!]

Fortunately the judge went on to say this: “It would follow that when deciding how to meet an eligible need, a local authority should take into account the fact (if the case) that one way of meeting the need is more likely to avoid or alleviate pain than an alternative way of meeting the eligible need.”

“I agree with the Defendant that the assessment gave holistic consideration to the well-being factors, including the impact of the revised care package upon the Claimant over the period of six months since it was first introduced in August 2017.

The Defendant has monitored (and continues to monitor) whether the Claimant has any additional eligible care needs that may have arisen as a result.

There is no or very limited evidence to support the Claimant’s assertion that her mental health and physical well-being have significantly deteriorated to the extent that the care package needs to change.

Neither the district nurses nor the evidence from the Claimant’s GP has given reason to believe that the removal of night time care has led to deterioration in the Claimant’s physical or mental well-being, whether in the form of pressure sores, increased pain or mental health problems.

The assessment does assess the Claimant’s eligible needs against the specified outcomes of relevance to the Claimant’s particular circumstances. The materials available, including the Claimant’s own evidence, do not identify accessing and engaging in work, training, education or volunteering as being of day-to-day relevance to the Claimant.

That position may change, but as matters stand I do not consider the assessment to have been unlawful on this ground.”

On the role of the target or general duty concerning integration with health services in the Care Act: the judge said this:

“I do not consider that the general duty in section 3(1) of the Act, or the associated provisions of the guidance, impose an absolute requirement to have specific health (including in this case physiotherapy) input during the course of making an assessment of care needs.

In the present case the assessment noted that an occupational therapy assessment had been completed on 9 September 2017, and that the Claimant had a profiling bed, mobile commode, powered chair and agreement from management for provision of a seating matters chair (see passage [vii]).

It specifically considered the Claimant’s complaint about having insufficient care hours in order to attend seated exercise groups and concluded that the current hours should be sufficient ([xviii]).”

If that assessment were to turn out to be incorrect or doubtful, then a reassessment may well be required, but I do not consider it possible to conclude that the Defendant’s decision in its March 2018 was unlawful as a result of failing to take account of needs for physiotherapy services.”

Please share:
error

Williams and another v LB Hackney [2018]

Keywords: Children, s.20 accommodation, DOL

“Compulsory intervention in the lives of children and their families requires the sanction of a court process. Providing them with a service does not.” [para. 1]

The case concerned a claim for damages under the Human Rights Act for breach of the Article 8 rights of the parents of 8 children. All 8 children had initially been removed from their parents’ care by the police on a 72-hour hold (under s.46 Children Act) and subsequently accommodated in foster care for 2 months before being returned to the care of their parents. The council had accommodated the children on the basis of powers in s.20 Children Act which require an absence of objection from parents. The issue, therefore, was whether s.20 provided a lawful basis for the local authority to accommodate the children away from their parents in these circumstances.

Both parents were initially arrested and placed on police bail which included a condition that they were not allowed unsupervised contact with their children. The parents were then asked by the council to sign a “Safeguarding Agreement”, which they did. This document did state that it was not legally binding, but it did not:

  • Inform the parents of the power under which the Council was purporting to act
  • Inform them of their rights under section 20
  • Explain the potential relevance of the agreement in any legal proceedings and the circumstances in which these might be brought

The same day, the parents also signed consents to medical treatment and to accommodation (albeit without the children being named).

After obtaining legal advice, the parents attempted to withdraw consent to the s.20 accommodation, but the local authority did not immediately return the children, citing the bail conditions.

It was two months before the bail conditions were altered and the children returned to their parents’ care.

It was held at first instance that the parent’s consent to s.20 accommodation was, therefore, not informed nor had it been fairly obtained and, therefore, that the council had no lawful basis on which to accommodate the children away from the parents in breach of their Article 8 rights. The local authority appealed and the Court of Appeal held that there was a lawful basis for the children’s accommodation.

The parents appealed further and it now fell to the Supreme Court to determine whether s.20 Children Act formed a lawful basis for accommodating children away from their parents in these circumstances.

Lady Hale set out that s.20 Children Act did not contain an explicit requirement for positive consent from parents in order to allow for circumstances in which a parent could not be located or was incapable of providing consent. However, a body of case law had developed which had established that a failure to object or mere acquiescence on the part of a parent was not sufficient to make accommodation under s.20 lawful (R (G) v Nottingham City Council [2008];Coventry City Council v C, B, CA and CH [2012]; In re W[2014]).

These cases had established 3 principles:

  •  That the use of section 20 “must not be compulsion in disguise”;
  •  The parent must have mental capacity to make such an agreement;

And

  •  The parent’s consent must be properly informed and fairly obtained.

There had also been numerous other cases in which the courts had criticised the use of s.20 by local authorities. However, criticism had primarily focused on the prolonged use of s.20 prior to the issuance of care proceedings (in some cases over many years) and/or the use of s.20 where the threshold for a care order had already been met.

In the current case, by contrast, the local authority had been attempting to work in partnership with the parents in an effort to get the children home as soon as possible and had sought to avoid escalating matters by NOT bringing care proceedings, unnecessarily.

Lady Hale stressed that it was important to recognise that s.20 was, in effect, a delegation of the parent’s parental responsibility to the local authority rather than a matter of ‘consent’ to removal of the child. The delegation of parental authority under s.20 should be “real and voluntary” [para. 39] in that the parent should not be coerced or misled, but this did not require that the parent be fully informed. She distinguished the current case, in which the s.20 accommodation had arisen following an emergency removal by the police, from the types of case cited above in which children had been directly removed from their parents’ care, stressing that:

“removing a child from the care of a parent is very different from stepping into the breach when a parent is not looking after the child.” [para. 40]

The parents’ bail conditions had meant that, at the relevant time, the parents were not able to provide suitable accommodation for their children until those conditions were removed.

Consideration was given to the issue of whether the council should have acted more quickly in asking the police to lift the bail conditions. However, the bail conditions were not directly within the council’s control and the police had independent concerns which meant that it was not certain that an earlier request from the council to the police would have been decisive in altering the conditions.

S.20 itself required the absence of objection rather than explicit consent and, therefore, mere failure to comply with best practice by obtaining explicit consent did not give rise to a claim for damages.

The principles set out in the previous case law should be taken to be guidance on good practice around the use of s.20 and applied particularly to the initial delegation of parental responsibility under s.20.

In the current case, however, the children were already being accommodated under emergency powers when s.20 began to apply and, therefore, the focus was on whether either objection (under s.20(7)) or request to return (under s.20(8)) rendered the continued accommodation of the children unlawful.

On the facts there was some uncertainty as to whether the parents had explicitly objected or unequivocally requested the immediate return of the children. They had, sensibly, followed legal advice to seek to work collaboratively with the council to achieve the return of the children rather than risk pushing the council into issuing care proceedings. As a result,

 “it is clear from the letters that the parents were prepared, albeit no doubt with some reluctance, to delegate the exercise of their parental responsibility for accommodating the children to the local authority until the Council felt able to return them, and that delegation was never unequivocally withdrawn.” [para. 59]

Summarising, Lady Hale concluded:

“In sum, there are circumstances in which a real and voluntary delegation of the exercise of parental responsibility is required for a local authority to accommodate a child under section 20, albeit not in every case (see para 40 above). Parents with parental responsibility always have a qualified right to object and an unqualified right to remove their children at will (subject to any court orders about where the child is to live). Section 20 gives local authorities no compulsory powers over parents or their children and must not be used in such a way as to give the impression that it does. It is obviously good practice in every case that parents should be given clear and accurate information, both orally and in writing, both as to their own rights and as to the responsibilities of the local authority, before a child is accommodated under section 20 or as soon as practicable thereafter.” [para. 64]

 

Comment:

Although the outcome of this case may have given rise to some initial surprise, the Supreme Court has actually reinforced most of what has previously been established about the use and misuse of s.20. What this case seems to clarify is that, while fully informed consent remains best practice, it is lawful for councils to accommodate children under s.20 in cases where the parental delegation may be reluctant or half-hearted, provided that to do so is a proportionate approach to achieving a mutually acceptable resolution to the case within a reasonable period of time.

Full text at: https://www.supremecourt.uk/cases/uksc-2017-0037.html

 

Please share:
error

R (Damien Tinsley (by his litigation friend and property and affairs deputy, Hugh Jones) v Manchester City Council and South Manchester Clinical Commissioning Group and LGA (Intervener) (2017)

Keywords: s117, Charging, Personal Injury, Trusts

This was the appeal by Manchester City Council and South Manchester CCG against the ruling that they were obliged to provide s.117 aftercare services regardless of the assets of a man who had previously been awarded personal injury damages and even though they were intended to fund his care.

Background                 

The essential question in this case was whether it was lawful for the responsible authorities to refuse to provide s.117 aftercare services to Mr. Tinsley on the grounds that he could fund services he needed from personal injury damages awarded to him.

The claimant’s position was that this was unlawful because the law is quite clear that the relevant authorities cannot charge for s.117 aftercare services under any circumstances (R v Manchester City Council ex p Stennett[2002]). However the defendants argued that allowing Mr. Tinsley’s deputy to claim the provision of free s.117 aftercare services on his behalf would breach the principle against double recovery (a common law rule as to the assessment of damages) (Crofton v NHSLA [2007] & Peters v East Midlands SHA [2009]).

Mr. Tinsley had developed a personality disorder as a result of serious head injuries sustained in a road traffic accident in 1998. After being detained under s.3 MHA, he was discharged to a mental health nursing home funded by the relevant authorities under s.117. In the meantime, the claimant was awarded damages which included £2.89 million for his future care. During that case, an argument that the damages should not include care costs because the relevant authorities were obliged by s.117 MHA to provide free care was rejected by the judge. In awarding damages which included future care costs he held that the relevant authorities were lawfully entitled to have regard, when deciding how the claimant’s needs were to be met, to the resources available to them. He further concluded that they would not fund either a care regime which the claimant was prepared to accept or even the care regime which he had found to be reasonable. He made clear that in his view, not to award damages for future care costs on the grounds that the state was obliged to meet these would result in an undeserved windfall for the insurers of the at fault party in the claim.

Following that judgment in 2005, Mr. Tinsley left the nursing home funded by the relevant authorities under s.117 and, since that time, his deputy had paid the cost of his accommodation and after-care services from his personal injury damages.

However, in 2009 a new deputy was appointed for Mr. Tinsley in circumstances where there were concerns that his previous deputy had mismanaged his financial affairs. Mr. Tinsley’s new deputy was of the view that funding of his existing care arrangements from his personal injury claim was unsustainable and sought to compel the local social services authority to accept a duty to fund Mr. Tinsley’s after-care under s.117 MHA.

 The local authority then took the position that Mr. Tinsley’s deputy could continue to fund his own care using the personal injury award and therefore that it was not under any duty to provide after-care services under s.117, until the money had run out. 

It was held that, as a matter of the clear construction of s.117 MHA (and noting that Parliament had had a recent opportunity to change that construction whilst making extensive amendments to s.117 in the Care Act 2014 but had not chosen to do so), s.117 after-care must be provided free of charge regardless of the resources of the patient (no matter what the source of those resources). It was not open to the local authority/CCG to refuse to provide services under s.117 to an individual on the basis that they had received personal injury damages which included the costs of such care.

The appeal

The council’s appeal against this ruling was rejected on the following grounds:

  1. That refusing to fund services is effectively the same as seeking to charge for those services and, therefore, that the fact that the funds available to Mr. Tinsley were expressly for the purpose of funding after-care did not negate the council’s obligation to provide non-chargeable aftercare under s.117.
  2. That it would be entirely anomalous for patients who had been compulsorily detained to have personal injury damages administered by the Court of Protection taken into account in determining their entitlement to s.117 aftercare when they were excluded from consideration of the means of non-compulsorily detained patients in need of care and support in the means test for Chargeable social care (both as existed following Crofton v NHSLA and as set out in the Care Act Charging regulations).
  3. That it was an impossible argument to suggest that a council could accept there was a “need” for such services pursuant to section 117 but then decide that an individual’s “needs” did not “call for” provision of those services by reason of the award of the damages for his personal injury, since that would require the second “needs” to be read with a wholly different meaning to the, clearly, medical “need” the section referred to.
  4. That it was also relevant that the shared duty was shared with a CCG and that it is accepted that CCGs cannot charge for services or take patient’s means into account when deciding what services to provide. It would, therefore, be odd if local authorities were allowed to do so in decision-making about what is essentially a health-related form of care and treatment.
  5. That the clear statutory duty imposed by s.117 to provide non-chargeable services could not be undermined by concerns regarding double recovery.

The Court of Appeal dealt in more depth with the issue of double recovery.

Longmore LJ set out the established position that, where an injured party is able to recover damages from a party at fault, it is reasonable for them to seek damages to fund private care where they would be eligible for state-provided care. However, if, at trial, it is apparent that the injured party will accept state-provided care, then they will not be able to recover damages to cover the cost of private care (since this would be double recovery). Nevertheless, he concluded, it does not follow that, having been awarded a sum for the costs of private care, an injured party’s access to care which a public body is under an express statutory duty to provide is in any way restricted.

Longmore LJ considered the possibility, raised in Peters v East Midland Strategic Health Authority [2009], of restrictions being placed at the time of the award of damages on the injured party’s potential access to state-funded care, but concluded that, even if such restrictions had been considered in the present case, it cannot be right to transfer the burden of deciding whether a claimant is entitled to claim local authority provision to the Court of Protection.

The appeal was dismissed.

 

Comment

This judgement is a comprehensive dismantling of the council’s, increasingly stretched, attempts to find a viable route to circumvent the R v Manchester City Council ex parte Stennett[2002] 2 AC 1127 construction of s.117. It puts beyond doubt the complete irrelevance of financial means to entitlement to s.117 aftercare provision. It may also have relevance for CHC funding if a CCG were to reject funding on similar grounds of access to PI damages.

Full judgment at: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1704.html

 

 

 

Please share:
error

The Secretary of State for Work and Pensions v Carmichael and Sefton MBC (2018)

Keywords: Housing Benefit; Human Rights

This was an appeal against an Upper Tribunal judgement (and a preceding First Tier Tribunal’s judgement) which purported to disapply Housing Benefit Regulations 2006 reg. B13 (known as the Bedroom Tax regulations) in the case of a couple who could not share a bedroom, due to disability.

The relevant Housing Benefit Regulations had been declared by the Supreme Court to violate Mrs. Carmichael’s ECHR rights under article 14, taken together with article 8 in R (on the application of Carmichael) v Secretary of State for Work and Pensions [2016].

The incompatibility identified by that the Secretary of State had subsequently addressed judgement by amending the Housing Benefit Regulations (with effect from 1 April 2017). The amendment added two new categories to Regulation B13 (5):

(a) a member of a couple who cannot share a bedroom;

(b) a member of a couple who can share a bedroom;”.

And introduced a new paragraph (6) providing the following definition:

“(6) For the purpose of these Regulations, reference to a member of a couple who can share a bedroom is to a member of a couple where the other member of the couple is a member of a couple who cannot share a bedroom”.

This is a rather impenetrable definition, described by the Upper Tribunal as being “in the best traditions of the dense drafting of social security secondary legislation.”

Nevertheless, the effect of the amendments was to alter the Housing Benefit regulations in such a way that the Carmichaels and other couples unable to share a bedroom, would, from 1 April 2017, no longer have their Housing Benefit reduced.

The present case, therefore, concerned the Carmichaels’ claim for Housing Benefit between March 2013 and 1 April 2017, a period during which their Housing Benefit had been reduced by 14% (as required by the unamended Housing Benefit Regulations). However, throughout that period, they had received Discretionary Housing Payments from the local authority making up the shortfall.

The First Tier Tribunal had attempted to resolve the incompatibility of the unamended regulations with the Carmichaels’ human rights by adding words to the regulation defining the number of bedrooms required for a couple, so as to allow for situations like those of the Carmichaels. 

The Secretary of State’s appeal to the Upper Tribunal had been stayed pending the outcome of the Supreme Court hearing on the human rights case.

Following the Supreme Court’s declaration of incompatibility, the Upper Tribunal concluded that the First Tier Tribunal had not had the power to go as far as adding words in interpreting the regulations.

However, the Upper Tribunal remade the decision, again finding that the Carmichaels were entitled to Housing Benefit without the reduction on the grounds that the UT was obligedto disapply the regulation requiring the reduction in order to act in a manner compatible with human rights.

The two grounds of appeal to the court on a point of law were:

(1) The Upper Tribunal was wrong to find that it and the First-tier Tribunal had the power to devise solutions to Conventionviolations which involved ‘rewriting’ the regulations (which were secondary legislation) whether that ‘rewriting’ involved adding words (as in the FTT decision) or disapplying/not giving effect to words which were present (as in the UT decision).

(2) In devising its solution in this case, the Upper Tribunal erroneously failed to have regard to other payments (in particular DHPs) for which provision had been made by the Secretary of State to make up for reductions in housing benefit.

The appeal succeeded on both grounds.

On ground 1, this was by a majority decision (Sir Brian Leveson Pagreeing with the reasoning of Flaux LJ).

However, Leggatt LJ gave a strong dissenting view on ground 1.

Ground 1:

The Human Rights Act

The majority view:Section 3 of the Human Rights Act required courts and tribunals so far as possible to read and give effect to Regulation B13 in a way which was compatible with Convention rights.

However, the Human Rights Act clearly respected parliamentary sovereignty. It was for Parliament to decide how a provision in secondary legislation, which had been found to be incompatible with Convention rights, was to be rendered compatible.

The UT’s power was limited to a declaration of incompatibility and did not extend torewriting or simply ignoring the Regulation, which was in force at the relevant time.Flaux LJ rejected the argument that the UT would have been acting unlawfully if it had not made the decision it did. While section 6(1) made unlawful acts of public authorities, which were incompatible with a Convention right, section 6(6) specifically excluded the context of a failure to pass remedial legislation. For the UT to rule in the way that it had, required, effectively, the altering of the wording of the existing regulation and this amounted to an impermissible rewriting of the regulation going beyond any permissible interpretation of the legislation under section 3.

Flaux LJ concluded:

“It is clear that, as Mr Eadie QC submitted, the existing powers of courts and tribunals do not include the rewriting of primary or secondary legislation in order to render it compatible with Convention rights.” [Para. 45]

Leggatt LJ’s dissenting view: Whilst it would have been beyond the powers of the UT to disapply primary legislation, secondary legislation was not entitled to the same protection on the grounds of parliamentary sovereignty.

The Human Rights Act specifically drew this distinction. Section 6(1) provided that it was unlawful for a public authority to act in a way incompatible with a Convention right. The exclusions provided in section 6(2) disapplied this requirement only where the legislative provision was found in primary legislation, or, where it was found in secondary legislation, the incompatibility with Convention rights was inherent in the enabling primary legislation. Neither was the case here. So, there was “no constitutional objection to declining to enforce or give effect to such provisions in so far as they are incompatible with Convention rights” [Para.79] because the Human Rights Act (which is primary legislation) required the UT to do so. The UT was further required to apply the effect of the regulation’s incompatibility with Convention rights by section 7(1)(b) Human Rights Act which provided that a person may “rely on the Convention right or rights concerned in any legal proceedings”.

Further, according to Leggatt LJ, the UT’s decision did not amount to rewriting the regulation, which would have been beyond its powers, but merely declined to apply the regulation in the circumstances of this specific case in as far as it had been found by the Supreme Court to be incompatible with the Carmichaels’ human rights. He concluded:

“What is made unlawful by section 6(1) is for a public authority to give effect to or enforce legislative provisions when to do so is incompatible with a Convention right. There is no requirement that the provision(s), which have that effect in the instant case, should also have that effect in other cases or should be capable of severance.

He continued thus:

“…Not giving effect to provisions of subordinate legislation in an individual case where to do so would violate a Convention right does not involve, “re-writing” the legislation. It shows a proper respect for constitutional boundaries by leaving it to Parliament or to the Secretary of State with delegated legislative authority to decide what changes to make to avoid further violations of Convention rights.” [Para. 88 & 89]

The case law

The Majority View: The Upper Tribunal had erred in concluding that the Mathieson case reflected “a consistent line of authority which would justify the approach adopted by the Upper Tribunal in the present case.” [Para. 51]. The Mathieson case had turned on its specific facts. The Supreme Court had specifically declined to extend its judgement in that case in a way which would have changed or redesigned the relevant legislation and had “clearly had in mind the need to preserve legislative choice as to how to render compatible legislation found to be incompatible with Convention rights” [Para. 50]. To the contrary, a careful review of a range of recent cases concerning welfare benefits and compatibility with EHCR rights demonstrated that:

“in cases where primary or secondary legislation has been held to violate Convention rights, the general approach of the Courts is to grant declaratory relief to that effect, but to decline to grant wider declaratory relief which might trespass on the role of the legislature.” [Para. 58]

Leggatt LJ’s dissenting view: Leggatt LJ again provided an alternative interpretation of the authorities, including Mathieson. He viewed them as demonstrating a consistent approach of treating incompatible secondary legislation as having no effect in individual cases, whilst leaving amendments to the regulations to render them compatible as a matter for the Secretary of State, quoting Baroness Hale in In re P and others [2008] UKHL 38 at [116]:

“The courts are free simply to disregard subordinate legislation which cannot be interpreted or given effect in a way which is compatible with the Convention rights. Indeed, in my view this cannot be a matter of discretion. Section 6(1) requires the court to act compatibly with the Convention rights if it is free to do so.”

Ground 2:

The majority view:Mr. Carmichael had received Discretionary Housing Payments, which had made up the shortfall in housing benefit. Consequently he had not actually suffered any financial loss. The UT should have limited itself to making a declaration that the regulation was incompatible with his Convention rights. If the Carmichaels had suffered any loss as a consequence, the remedy would have been to bring a claim for damages in the civil courts under section 8(2) of the Human Rights Act. However, it was notable that no damages had been sought in the Supreme Court case, no doubt because no actual financial loss had been suffered. The UT’s judgement, were it allowed to stand, would have resulted in double recovery i.e. The Carmichaels would have received both Housing Benefit and DHPs for the amount in question.

Leggatt LJ: Leggatt LJ agreed that the UT made an error of law in disregarding the payment of DHPs. However he concluded that the UT’s judgement should simply have been amended to require consideration of any amounts previously paid under DHPs prior to the payment to Mr Carmichael of any difference between the housing benefit recalculated without the under-occupancy deduction of 14% and prior payments of both Housing Benefit and DHPs.

 

Comment:

It is unfortunate that this case further muddies the waters, rather than clarifying how far a court or tribunal can go in correcting the effect of secondary legislation, which has been found to violate a claimant’s human rights. This is of particular concern, given the increasingly heavy reliance placed on secondary legislation to provide the ‘meat’ of legislative provisions (not least in the EU withdrawal bill currently before Parliament).

A substantial amount of time can pass between a declaration of incompatibility by the courts and the bringing into force of amended regulations, particularly in politically sensitive areas where maintaining a ‘tough’ stance may take precedence over accepting the rule of law.

The majority view taken by Flaux LJ and Sir Brian Leveson P would seem to require tribunals (at least) to continue giving effect to secondary legislation even where it has already been found to be incompatible with the Human Rights Act until it is actually amended. This raises the prospect of every individual claimant needing to seek damages in the civil courts under s.8 (2) Human Rights Act in order to correct losses due to unlawful regulations during the gap prior to amendment.

Full text at: http://www.bailii.org/ew/cases/EWCA/Civ/2018/548.html

 

 

 

 

 

 

Please share:
error

SCC v MSA & Ors (2017)

Keywords: Rule 3A representatives

MSA was a young man with profound learning disabilities who was unable to communicate or mobilise independently.

He was being cared for in his family home with a package of care commissioned by S CCG. 

That package of care involved MSA’s deprivation of liberty which had been authorised by the court as being the least restrictive option and in his best interests.  The circumstances of his care included:

  • Not having external carers in the home;
  • Being frequently strapped into his wheelchair;
  • Spending time in a padded room with a closed door that he was unable to open;
  • And being restrained during personal care interventions.

MSA’s mother, JA, was his primary carer in these circumstances. When the commissioning CCG applied to COP for authorisation of the deprivation of liberty, the issue arose as to whether his mother would be a suitable candidate to be his rule 3A representative. [In the event, in this case, the issue became academic because JA did not wish to act as his Rule 3A representative and the Official Solicitor did so throughout. Nevertheless Bellamy DJ provided useful guidance on the issue.]

The judgement sets out the relevant Court of Protection rules:

  1. Rule 3A of the Court of Protection Rules 2007 (COPR) requires the court to consider in each case how best to ensure that P’s participation in proceedings is secured. Rule 3A(2)(c) provides that the court may direct that:-

“P’s participation should be secured by the appointment of a representative whose function shall be to provide the court with information as to the matters set out in Section 4(6) of the Act and to discharge such other functions as the court may direct”.

  1. Under Rule 147 titled “Who may act as a Rule3A representative for P”:-

“A person may act as an accredited legal representative or representative, for P, if that person can fairly and competently discharge his or her functions on behalf of P”.”

Thus, the criteria for appointment as a Rule 3A representative is that a person can fairly and competently provide information to the court about the matters relevant to determining P’s best interests and, more broadly, “represent” them in the proceedings.

The Official Solicitor submitted that it would be “manifestly inappropriate” for MSA’s representative to be “the very person responsible for implementing restrictive care arrangements that constitute a deprivation of liberty, in circumstances where those arrangements go well beyond mere 24 hour supervision.”

The CCG, on the other hand, took the view that JA would be suitable as “she is fully engaged with statutory services and care providers and has a history of advocating on MSA’s behalf. There is nothing in her conduct to date by which JA has demonstrated she would be unsuitable if willing to so act.”

In coming to a view, Bellamy DJ considered the principles already set out on Rule 3A representatives in Re NRA& Ors [2015]and Re VE [2016]that: 

  • Theinterest of devoted family members or friends in P’s situation does not necessarily constitute a conflict of interest
  • Thattheir experience of advocating for P and close knowledge of him/her may make them particularly well placed to promote P’s best interests
  • Thatthe issue of whether a family member or friend is suitable to represent P will be specific to the facts of each case

Bellamy DJ took the view that

“it must be right that where there is any possibility (even if it is perceived rather than actual) that a conflict of interest will arise, the appointment of a representative or litigation friend must be closely scrutinised by the court.” (para. 27)

Consequently, he concluded that the issues relevant to deciding the suitability of a family member as a Rule 3A representative were:

  • Therelationship between the family member and P
  • Theconduct, if any, of the family member and any available evidence that he or she has acted in a way which did not fairly and competently represent P
  • Thenature of the restrictive care package and the role that the family member would play in such regime.

He stressed that, in case such as this, where a family member is responsible for implementing care, whichincludes significant restrictive physical interventions, particular care would be required in the exercise of the court’s discretion as to suitability to represent P. However, he concluded that, even in such a case, there is no blanket objection in principle to a family member undertaking the role of Rule 3A representative.

The court must instead satisfy itself that the proposed representative can:

  •  Elicit P’s wishes and feelings and making them and the matters mentioned in Section 4(6) of the MCA known to the court without causing P any or any unnecessary distress;
  • Critically examine from the perspective of P’s best interests and with a detailed knowledge of P the pros and cons of a care package, and whether it is the least restrictive available option; and
  • Keep the implementation of the care package under review and raising points relating to it and changes in P’s behaviour or health” (para.30)

This judgement is likely to reduce pressures around the funding of professional Rule 3A representatives, whether in the guise of Accredited Legal Representatives (ALRs), the Official Solicitor or other potential litigation friends (such as IMCAs or other professional representatives). However, as a result, it risks undue pressure being placed on family members to serve in the capacity of Rule 3A representative and, as the judgement recognises, runs risks of failing to provide sufficient independent scrutiny of P’s situation unless extreme care is taken by the court in considering such an appointment.

Whilst it may reflect a gradual shift towards a greater recognition of the potential benefits of informal carers/family members and their knowledge of P, it may also reflect a certain pragmatism on the part of CoP in the face of a severe lack of public funding to support an adequate supply of professional Rule 3A representatives.

Full transcript at: http://www.bailii.org/ew/cases/EWCOP/2017/18.html

 

 

 

Please share:
error

Richards v Worcestershire County Council (2017)

Keywords: s.117, private law claim, judicial review

This is the appeal from Richards (by his deputy and litigation friend Anne Minihane) v Worcestershire County Council and South Worcestershire CCG [2016] in which the court declined to strike out a private law claim for the funds expended by a Deputy on providing care for an individual who was entitled to s.117 after-care.

At first instance, Newey J had concluded that:

  • Where a public body has made a decision that an individual is eligible for something which it is required to provide under a statutory duty but fails to actually provide it; and
  • Where, as a result, the claimant has valid basis for a private law claim (e.g. unjust enrichment)

such a private law claim could proceed.

The grounds of appeal which were considered in this judgement were:

  1. That the claim should be struck out as contravening the exclusivity principle which sets out a general rule that a public law decision can only be challenged by means of judicial review (with the resulting time limits and other restrictions) and cannot be pursued via a private law action.

After a thorough review of the authorities, Rupert Jackson LJ set out general principles that:

  1. The exclusivity principle applies where the claimant is challenging a public law decision or action and either: his or her claim affects the public generally; or justice requires for some other reason that the claimant should proceed by way of judicial review.
  2. The exclusivity principle should be kept in its proper box. It should not become a general barrier to citizens bringing private law claims, in which the breach of a public law duty is but one ingredient.

Applying these principles to this case, Rupert Jackson LJ concluded:

“This is a private law claim, even though based upon section 117 of the 1983 Act. It has no wider public impact. Justice does not require for any other reason that the claimant should proceed by way of judicial review. If the exclusivity principle is allowed to block this claim, it will become an instrument of injustice.” (para.67).

He therefore dismissed the appeal on that ground.

The second ground of appeal was this:

  1. That a failure by the defendants to discharge their duty under section 117 of the 1983 Act did not give rise to any private law claim for unjust enrichment or restitution

It is clearly established that a patient who receives inadequate s.117 after-care services cannot claim damages for breach of statutory duty. However, Rupert Jackson LJ pointed out “The claimant’s case, however, is the opposite of that scenario.”. He had little hesitation in dismissing this ground of appeal because the claim was not even faintly based on a breach of the statutory duty itself but rather:

“The claimant’s claim is that he received adequate after-care services. Therefore the defendants must pay for them.”(para.80).

The issue was therefore a dispute as to the facts which should be decided at a hearing on the claim itself.

COMMENT

Now that the Court of Appeal has also refused to strike out the claim it seems inevitable that this case will proceed to a substantive hearing. In combination with the recent judgement in the Tinsley[1]case that responsible public bodies cannot decline to fund s.117 aftercare services even where the person has previously received personal injury damages to fund their care, Local Authorities and CCGs must begin to examine their historical decision-making around s.117 with greater care.

In this particular case, it remains to be seen whether the private law claim will be successful on the facts. The most contentious issues are likely to be:

  • Whose mistake led to the payment of aftercare costs from the claimant’s funds (rather than those of the Council and CCG, it being a joint duty). Does liability for this “unjust factor” lie with the claimant’s deputy or with the s.117 authorities?
  • Does the fact that the care actually provided may well have been more generous than the s.117 authorities would have provided or agreed to fund, affect the extent of any liability they may have?

 

Full text at: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1998.html

 

 

 

 

 

[1]R (Damien Tinsley (by his litigation friend and property and affairs deputy, Hugh Jones) v Manchester City Council and South Manchester Clinical Commissioning Group and LGA (Intervener) [2017])

Please share:
error