Archive for Care and Health Law Cases

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.”

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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

 

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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

 

 

 

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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

 

 

 

 

 

 

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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

 

 

 

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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])

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R X (A Child) (No. 4)  (2017)

Keywords: Mental Health, NHS resources

In this case, Sir James Munby, President of the Family Division, expressed his concern about the lack of appropriate mental health beds for children and young people in England and Wales.

The case concerned a 17-year-old girl in desperate and urgent need of a suitable placement to prevent a serious risk of suicide.

In the preceding hearing, Sir James Munby had expressed publicly his outrage and frustration at the failure to provide a suitable placement for the girl.

NHS England’s resulting offer of a suitable bed was not a matter for congratulation, but a further cause for concern. Securing the right clinical support for those who needed it could not be dependent on the lottery of an individual’s case coming before a senior judge and attracting widespread publicity. 

X, who was the subject of a care order, was imminently due to be released from a secure unit (ZX), having served a Detention and Training Order there. ZX could not lawfully detain her further and was, in any case, struggling to meet her needs. Whilst at ZX she had made multiple, determined attempts to commit suicide and there was strong clinical evidence that, if released into the community, she would more than likely commit suicide within days.

In the previous judgement, Sir James Munby had described a care plan to place X back in any community setting as “a suicide mission to a catastrophic level”. He had ordered copies of that judgement sent to NHS England and Secretaries of State with relevant responsibilities and his views had attracted extensive media coverage.

By the time of this hearing, NHS England was able to offer a bed for X by converting a psychiatric intensive care unit into an 8-bed low security unit. Whilst this provided a solution to the immediate situation for X, Sir James Munby stressed that the provision of care for young people like X should not depend on judicial involvement or public pressure. He concluded:

“I cannot escape the powerful feeling that, but for my judgment, the steps subsequently taken would have been neither as effective nor as speedily effective as appears to have been the case. This, however, is not a matter for congratulation; on the contrary, it is, of itself, yet further cause for concern. The provision of the care that someone like X needs should not be dependent upon judicial involvement, nor should someone like X be privileged just because her case comes before a very senior judge. I emphasise this because a mass of informed, if anecdotal, opinion indicates that X’s is not an isolated case and that there are far too many young women in similar predicaments. How are they to be protected?” [Para. 18]

 

Full transcript available at: https://www.judiciary.gov.uk/wp-content/uploads/2017/08/in-the-matter-of-x-a-child-no-4.pdf

 

 

 

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Re RD [2018]

Keywords: Children; Care proceedings; Deprivation of Liberty

This case concerned RD, a 14 year old residing in a specialist residential placement (Lennox House). The key question was whether RD was deprived of her liberty (Article 5 EHRC) in this placement.

Lennox House, originally a working farm, was a large detached house in a rural setting in Scotland with 4 staff supporting 6 young people.  RD was recorded as saying that she did “not feel watched over all of the time”, and felt “safer” than she had at any time in her life before. She was free to move around Lennox House and a lock on the door of her room was under her control. She had a lot of contact with staff. Staff were generally present in communal areas, but RD was free to spend time alone in her room when she wished. She was allowed to spend time outdoors in the grounds of Lennox House, but was watched from a distance by staff. RD also made trips into the community but these were accompanied by a member of staff. An important issue was the extent to which the presence of staff was for the purpose of support as opposed to supervision.

Deprivation of liberty under Article 5 has three elements (Storck):

  1. The objective element of a person’s confinement to a certain limited place for a not negligible length of time;
  2. A lack of valid subjective consent to the confinement in question
  3. Confinement imputable to the State.

Elements 2 & 3 were satisfied here. RD lacked Gillick competence to consent to her placement (see In re D [2017]). She was under an interim care order, therefore her parents could not validly consent on her behalf and nor could a local authority.  RD’s accommodation was clearly imputable to the state.

The case therefore centred on whether element 1 was satisfied by the facts of RD’s placement. That is, whether her circumstances fulfilled the ‘acid test’ laid down in Cheshire West: “continuous supervision and control of those caring for her, and not free to leave the place where she lives.”.

Cobb J was in no doubt that RD was not free to leave (in the sense of choosing to live somewhere else), whilst noting that young people under 16 are usually typically not ‘free to leave’ their home, as a result of lacking alternative options.

Cobb J identified some key elements drawn from Cheshire Westand subsequent cases which needed to be considered in determining whether RD was subject to “complete supervision and control”:

  • The purpose of the living arrangements (i.e. therapeutic), compliance or lack of objection to those arrangements and the relative ‘normality’ of arrangements were not relevant to an objective view as to whether they constituted a deprivation of liberty;
  • What constitutes a deprivation of liberty must be the same for everyone, regardless of physical or mental disability;
  • The appropriate comparator was a typical non-disabled child of similar age, family background and relative maturity living at home with their parents and it was important to recognise that the normal exercise of parental responsibility may restrict a child’s freedom of movement in ways that do not amount to a deprivation of liberty (e.g. ‘grounding’ teenagers);

In applying these considerations to the facts of the case, Cobb J took the view that the level of monitoring of RD was not any more intense or overt than ‘parental watchfulness’. He highlighted that RD was permitted to walk in daylight to a nearby village shop without being accompanied by a staff member and that the reasons for staff to accompany RD on more distant excursions were, in part, due to the rural location and therefore distance of Lennox House from other locations. He also identified that short term increases in the level of supervision following behavioural incidents or absconding were similar to appropriately imposed boundaries and sanctions that any young person of similar age might typically be subjected to. He also considered relevant that the primary purpose of the presence of staff was to provide the support and attention which RD, because of her needs, required, concluding that 1:1 attention and support was qualitatively different from 1:1 supervision and noting that RD did not feel “watched” all the time.

Cobb J concluded that the regime for RD at Lennox House involved restrictions but that these were of the type which a typical child would have placed upon them. Although a finely balanced decision, overall the restrictions did not possess the ‘degree or intensity’ to amount to a deprivation of her liberty.

Comment:

This case again illustrates the challenges involved in identifying deprivation of liberty in relation to children and young people in residential care settings. The comparison with a ‘typical’ child is often, as in this case, a complex matter. It is notable that, while setting out that disregarding the purpose of the living arrangements is one of the essential elements in determining “complete supervision and control”, Cobb J nevertheless points to the purposes of staff presence being to provide support and attention and contrasts these with supervision. Similarly, while stressing the comparison with a typical child who “is free from disability”, Cobb J nevertheless identifies that 1:1 attention/support is provided because of RD’s ‘needs’. A greater level of supervision is also justified on the basis of RD’s presentation as younger than her chronological age but the likelihood of a relationship between this ‘presentation’ and RD’s “complex, therapeutic needs” is not addressed.

On a practical level, however, this case again illustrates that even relatively restrictive regimes in community-based residential provision are unlikely to amount to a deprivation of liberty for a young person under 16.

Full text at: https://www.familylaw.co.uk/news_and_comment/re-rd-deprivation-of-restriction-of-liberty-2018-ewfc-47

 

 

 

 

 

 

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Re KT, DR, KH and DC (2018)

Keywords: Rule 3A (1.2) representatives, litigation friends, COP visitors

This is the latest case to address the issue of the participation of P, the person without capacity, in non-contentious deprivation of liberty cases (known as Re Xcases) by means of a Rule 3A (now known as a Rule 1.2) representative, or otherwise.

Previously (in JM), Charles J had ruled that all non-contentious proceedings for orders to authorise a deprivation of their liberty should be stayed where no family member or friend was able to be appointed as P’s Rule 3A representative. He had sought to engage central government attention to the need to identify a funded, realistic option for the participation of P in such cases.

Initial responses from central government continued to insist that local authorities should appoint a professional advocate, whilst failing to identify any funding that would enable them to do so. All of the other options previously identified (the Official Solicitor acting as litigation friend; the appointment of an accredited legal representative; or directing local authorities to provide a s.49 report) had previous been deemed not practicably available in the substantial majority of cases, on the basis that local authorities were not under a statutory duty to provide a representative and were, given the current extent of financial pressures on them, unwilling to do so.

In submissions made on this occasion, the Secretary of State for Justice sought to alter his previous acceptance of the position that local authorities did notowe a statutory duty to provide P with representation by contending that local authorities owed such a duty under the Human Rights Act 1998 Article 6 (to ensure due process).

Charles J declined to rule on the point itself, concluding that, even if such a duty were owed to individual incapacitated people, the primary duty still lay with the Secretary of State for Justice to enable the Court of Protection itself, to carry out its functions as a public authority, lawfully.

These four cases had been brought forward as test cases in response to an indication by the Government Legal Department that Ministers had agreed to provide funding to HM Courts and Tribunals Service to enable greater use of visitors by the COP. It was, therefore, necessary to consider whether the minimum procedural requirements of Articles 5 (and 6) and common law fairness in terms of the person’s participation would be satisfied by the appointment of a general visitor to prepare a report under s.49 MCA (provided that that report supported the making of an order authorising the Deprivation of Liberty).  

In considering this question, Charles J highlighted that:

“It is not suggested that visitors should be appointed as Rule 3A representatives, and so the question is whether, without making [the person] a [formal] party, the appointment of a visitor to write a report is a good enough option to provide the required procedural safeguards.” [para. 27]

He concluded that it was, identifying that a visitor would be independent of the commissioning body and have relevant expertise.

In order for a visitor’s report to satisfy the requirements of Article 5 the visitor should:

  • i) elicit P’s wishes and feelings and make them and the matters mentioned in s. 4(6) of the MCA known to the Court without causing P any or any unnecessary distress,
  • ii) critically examine from the perspective of P’s best interests, and with a detailed knowledge of P, the pros and cons of an offered care package, and whether it is the least restrictive available option, and
  • iii) keep the implementation of the care package under review and raise points relating to it and changes in P’s behaviour or health.

Charles J therefore accepted that the appointment of a visitor should go ahead in these (and other similar) cases in as far as resources are provided to enable the appointment of visitors.

Whilst expressing severe reservations about the adequacy of resources actually being offered by the Secretary of State for Justice (which appear to be in the region of funding for 200 reports a year), he concluded that those resources should be utilised as far as they are available in practice, identifying that:

“The result of the COP proceeding on the basis that it will generally accept an assertion by an applicant authority that a professional Rule 3A representative is not available at face value is that in most cases the COP will appoint a visitor for so long as that remains a practically available option.” [para. 88]

However, Charles J also expressed the clear view that, at best, the appointment of COP visitors was a short-term solution. He reiterated that (although P’s best interests were the pre-eminent consideration on a case by case basis) the appointment of professional Rule 3A representatives was in most cases a preferable solution:

“In my view, the appointment of a professional who could act independentlyas a Rule 3A representative and carry out regular reviews of P’s placement and care package on the ground would in most cases be likely to have advantages over the appointment of a visitor because it would provide a better basis of and for review and equivalent expertise and independence to that provided by a visitor.” [para.81]

Charles J remained highly critical of the failure of the Secretary of State for Justice (through officials at the MoJ and DoH) to address the key issue of how such appointments could actually be made in the continuing absence of funding to do so, referring to his comment in JM that:

“This has the hallmarks of an avoidant approach that prioritises budgetary considerations over responsibilities to vulnerable people who the Supreme Court has held are being deprived of their liberty.” [para.19]

Charles J was clear that the funding which appeared to be actually on offer from central government to enable COP to appoint visitors would cover at best no more than the immediate short-term backlog. Therefore, he pre-emptively ordered that future applications or reviews should be stayed and the Crown should be joined as a party as soon as a practically available process can no longer be achieved.

How the COP was to be enabled to progress the potentially large number (estimated at 53,000 per year) of non-contentious applications for welfare orders sanctioning Deprivations of Liberty in the longer term, remained unresolved.

Charles J concluded:

“It is understandable that a commitment to an open-ended provision of resources to provide visitors cannot be given, but:

  • i) the continued advancement of a solution that is not a practically available option, and in any event
  • ii) the advancement of a solution that contains no adequate assessment of the resources that are likely to be needed to enable the COP to deal with cases of this type other than in the short term,

coupled with the history of the approach taken by the Secretary of State, lead inexorably to the conclusion that it would be very unwise to proceed on the basis that as and when the present backlog, or part of it is cleared, and problems about the representation of P in new applications for or in reviews of welfare orders arise, that the Secretary of State will, through the promised review of the resources, address them promptly or constructively.

Rather, I am sorry that I have to conclude that the evidence in these cases shows that it can be expected that history will repeat itself and the Secretary of State will persist in taking an avoidant and unconvincing “pass the parcel” approach to the problems which he has a statutory duty to resolve,alone or through a constructive approach with the local and other public authority applicants.” [Paras. 64 & 65]

Full transcript at: http://www.bailii.org/ew/cases/EWCOP/2018/1.html

 

 

 

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R (on the application of SB (a child by his father and litigation friend) v NHS ENGLAND (2017)

Keywords: Decision making, Irrationality

A decision of NHS England to refuse funding to treat a child who suffered from a rare metabolic condition with a drug which would alleviate his condition was irrational. 

SB (a 7 year old child) had Phenylketonuria (“PKU”), a rare inherited metabolic condition which inhibited his ability to digest protein. The condition prevented his body from breaking down an amino acid called phenylalanine, which consequently built up in his blood. SB was also severely autistic.

Without treatment, most children with PKU develop profound and irreversible intellectual disability, delayed speech, seizures and behavioural abnormalities. Other adverse outcomes include impaired executive function, reduced processing speed, attention problems, and impaired fine motor skills.

The objective of any treatment is to ensure that blood phenylalanine levels are maintained consistently within a safe range. If levels are consistently above that range, there is a risk of long term cognitive impairment. The link between cognitive impairment, and phenylalaninelevels above the upper limit of the range is well documented.

The standard treatment for PKU is dietary management. This involves restricting the amount of natural protein consumed, often to only 10%-20% of the amount contained in a normal diet, coupled with the taking of a supplement (a protein substitute) to promote normal growth and development. With the exception of fruit and some vegetables, there are few foods that can be eaten without severe limitation.

SB has two siblings who also suffer from PKU, but they are not autistic. In their case, it has been possible to implement a dietary regime that successfully manages the condition. However, the extreme severity of SB’s autism and the way in which it affects his behaviour has made it increasingly difficult to control his consumption of protein and to ensure that he takes his supplements as he should. His parents, teachers and clinicians have tried very hard to manage his diet but despite their efforts his levels of phenylalanine are regularly above the levels that are considered safe.

SB’s father (and litigation friend) sought to challenge on his behalf a series of decisions made by NHS England refusing the application of SB’s consultant for funding to treat him with a drug called Kuvan, which (for some patients) reduces the level of phenylalanine in the blood, reducing the need for dietary restrictions and enabling them to eat more “normal” foods. NHS England had decided not to fund the use of Kuvan as a treatment for children with PKU over the age of 4.

It is well established that individual patients do not have an enforceable right to any particular type of medical treatment from the State and that it is consistent with Article 8 (ECHR) rights for the state to seek to strike a balance between the needs of individuals and the constraints of limited public resources. However, public bodies must act rationally and in accordance with their own policies.

NHS England’s Individual Funding Request (IFR) policy required a clinician to demonstrate that a patient proposed for funding was both:

(1) Significantly different clinically to other patients with the same condition

and

(2) Likely to gain significantly more clinical benefit (than other patients with the same condition)

In the view of SB’s consultant, if S proved to be responsive to it, as appeared likely, Kuvan would provide a significantly greater clinical benefit for S than for other child patients who were able maintain their phenylalanine levels through dietary control alone, because it would enable the levels of phenylalanine in his blood to be brought consistently within the target range beyond which he ran the risk of suffering long term brain damage.

In response to the funding request, NHS England’s funding panel had agreed that SB was significantly different clinically, due to his inability to implement successful dietary management. They also accepted that, without Kuvan, he would continue to have phenylalanine levels above the target range, which would risk ongoing brain damage. Nevertheless, the panel had refused funding on the grounds of insufficient evidence of Kuvan’s “clinical effectiveness”.

It was held that the panel had both misunderstood some of the evidence presented and had failed to consider the correct question. The panel had evaluated “clinical effectiveness” on the grounds that there was insufficient evidence of long-term improvementin cognition and/or nutritional uptake in response to Kuvan. However, this was a perverse interpretation of “clinical effectiveness” in this context. Instead, the panel should have considered the question of clinical effectiveness on the basis that the target outcome in this case was reduction in blood phenylalanine levels and improved dietary tolerance of phenylalanine. That target was the clear clinical intention of SB’s consultant and there was plentiful evidence of Kuvan’s effectiveness in those respects (as acknowledged in NHS England’s own analysis). Additionally, the panel appeared to have erroneously believed that SB’s current phenylalanine levels were not in themselves hazardous, due to a misinterpretation of the evidence provided by SB’s consultant.

Consequently, Andrews J concluded that the panel’s decision was irrational. The decision to refuse funding was quashed and the matter referred back to the funding panel for reconsideration.

 

Full transcript available at: https://www.judiciary.gov.uk/wp-content/uploads/2017/08/sb-v-nhs-england-final-80817.pdf

 

 

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