Foster Parents: Rest Periods, Public Holidays, Leave

November 21st, 2018 by James Goudie QC in Social Care

The Grand Chamber of the CJEU has ruled, in Case C-147/17, Sindicatul Familia Constanta v Directia Generala de Assistenta Sociala, that Article 1(3) of Directive 2003/88/EC concerning working time, read in conjunction with Article 2(2) of Directive 89/391/EEC, on the introduction of measures to encourage improvements in the safety and health of workers, must be interpreted as meaning that the work performed by a foster parent, under an employment contract with a public authority, which consists in taking in a child, integrating that child into his or her household and ensuring, on a continuous basis, the harmonious upbringing and education of that child, does not come within the scope of the Working Time Directive.

 

Free childcare

October 11th, 2018 by James Goudie QC in Social Care

In R (T) v SoS for Education (2018) EWHC 2582 (Admin) three parents and their three children applied for judicial review of the policy of the SoS to grant additional free childcare to working parents, but deny it to lone parents unable to work. Lewis J held that the provision of an additional 15 hours of free childcare to the children of working parents did not breach ECHR Article 14 read with Article 8, despite a differential treatment between families where one parent worked and lone parents who were unable to work because they were carers or were the victims of domestic violence. The childcare policy was intended to enable parents to return to work, or work more hours. It was objectively justified.

 

Community Care Assessments

August 16th, 2018 by James Goudie QC in Social Care

R ( VI ) v Lewisham LBC ( 2018 ) EWHC 2180 ( Admin ) is concerned with the Care Act 2014, the Care & Support ( Eligibilty Criteria ) Regulations 2015, and related guidance. The Judge reiterated ( para 67 ) that community care assessments must not be subject to over-zealous textual analysis, and ( para 68 ) that the level of detail required in an assessment is essentially a matter for the local authority.

 

Children In Need

July 19th, 2018 by James Goudie QC in Social Care

The Appeal to the Supreme Court in Williams v Hackney LBC (2018) UKSC 37 concerned the limits of a local authority’s powers and duties to provide accommodation for children in need under s 20 of the Children Act 1989 (“CA”). The Supreme Court holds that there had been a lawful basis for the children’s continued accommodation under s 20. Read more »

 

Funding for respite service

February 23rd, 2018 by James Goudie QC in Social Care

In R (Juttla) v Hertfordshire Valleys Clinical Commissioning Group (2018) EWHC 267 (Admin) Mostyn J set aside the resolution made by the Defendant on 16 November 2017 to remove funding of £600,000 annually from Nascot Lawn in Watford (a respite service for children with complex medical needs) with effect from 16 May 2018. The consequence is that the Defendant must now comply with its legal duty formally to consult Hertfordshire County Council (HCC) about its proposal to withdraw that funding.

The Defendant maintained that it was not funding a “health service” within the terms of Sections 3 and 3A of the National Health Service Act 2006. The Judge ruled however that the services provided at Nascot Lawn are health services.  That being so, Regulation 23 of the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013 (SI 2013 No. 218), falls within Part 4 of the Statutory Instrument which is entitled “Health Scrutiny by Local Authorities”. That Part establishes a scheme whereby local authorities will be fully and formally consulted on any major health service changes in their area, will have the opportunity to scrutinise them, and in the absence of agreement will have the opportunity of seeking redress from the Secretary of State. Read more »

 

ECHR ART 5

February 5th, 2018 by James Goudie QC in Social Care

Re A-F (Children) (2018) EWHC 138 (Family) is a number of test cases listed before the President of the Family Division, Sir James Munby. They raise various substantive and procedural questions in relation to the interface between care proceedings brought in the Family Court pursuant to Part IV of the Children Act 1989 and the requirements of Article 5 of the Convention, specifically, the circumstances in which Article 5 is engaged in relation to a child in the care of the local authority and, where Article 5 is engaged, what procedures are required to ensure that there is no breach of the requirements of Articles 5(2)-(4).

The President dealt with the general principles from paragraphs 8 to 40 inclusive of his Judgment, the question of whether it is possible to identify a “minimum age” at paragraphs 41-44 inclusive, and process and procedure at paragraphs 46-53 inclusive, the interface with care proceedings at paragraph 54, and continuing review at paragraphs 55/56. Read more »

 

Zambrano Carers: Children Act 1989

November 15th, 2017 by James Goudie QC in Social Care

The Supreme Court on 15 November 2017 in R (HC) v SoS for DWP (2017) UKSC 73 has unanimously upheld the decision of the Court of Appeal (2015) EWCA Civ 49, for substantially the same reasons.  The case concerns Mrs HC.  She is an Algerian national who has been living in the UK since 2009. She arrived with leave but then over-stayed.  In 2010 she married a British national on whom she depended financially. She had two children by him, in 2011 and 2013. Her children are British nationals. The relationship ended after domestic violence in late 2012, when Mrs HC sought help from her local authority.  Oldham Council, after initially refusing, agreed to provide Mrs HC and her children with temporary housing and £80.50 per week for subsistence and utilities, under Section 17 of the Children Act 1989. Read more »

 

Mental health after-care

November 2nd, 2017 by James Goudie QC in Social Care

The question in Tinsley v Manchester City Council [2017] EWCA Civ 1704 was whether a person who has been compulsorily detained in a hospital for mental disorder under Section 3 of the Mental Health Act 1983 (“the 1983 Act”) and has then been released from detention but still requires “after-care services” is entitled to require his local authority to provide such services at any time before he has exhausted sums reflecting the costs of care awarded to him in a judgment in his favour against a negligent tortfeasor.  The Court of Appeal held that he is so entitled.  It is not the law that a Section 117 claimant can claim against a local authority for after-care services only once any award for such services against a tortfeasor has been, or is about to be, exhausted. Read more »

 

Abuse by foster parents

October 19th, 2017 by James Goudie QC in Social Care

In Armes v Nottinghamshire County Council (2017) UKSC 60 the appellant was in the care of the respondent local authority from the ages of seven to eighteen. The local authority placed her into foster care with Mr and Mrs A between March 1985 and March 1986, and with Mr and Mrs B between October 1987 and February 1988. She was physically and emotionally abused by Mrs A, and sexually abused by Mr B. The case proceeded on the basis that the local authority were not negligent in the selection or supervision of the foster parents, but the appellant claimed that the local authority were liable for the abuse, either on the basis that they were in breach of a non-delegable duty, or on the basis that they were vicariously liable for the wrongdoing of the foster parents. Her claim was dismissed by the High Court and the Court of Appeal. Read more »

 

Ordinary Residence

October 6th, 2017 by James Goudie QC in Social Care

In R (Barking and Dagenham LBC) v SoS for Health (2017) EWHC 2449 (Admin) Barking and Dagenham Council (“Barking”) challenged a decision by the Defendant, the Secretary of State for Health, that the second interested party, HR, was ordinarily resident in its area for the purposes of the provision of care services to him. As a consequence, Barking assumed responsibility for funding HR’s care. Barking contended that HR’s care should be funded by the London Borough of Redbridge, the First Interested Party, the authority for the area where HR grew up and was physically resident until he moved to accommodation in Barking in August 2012. Read more »