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.

The framework within which the issues arising in these cases fell to be considered was the analysis of Article 5 set out by the Strasbourg Court in Storck v Germany (2005) 43 EHRR 96, paras 74, 89, repeated in Stanev v Bulgaria (2012) 55 EHRR 696, paragraphs 117, 120, and summarised in the Supreme Court by Lady Hale DPSC in Surrey County Council v P and others (Equality and Human Rights Commission and others intervening), Cheshire West and Chester Council v P and another (Same intervening) [2014] UKSC 19, [2014] AC 896 (Cheshire West), paragraph 37:

“… what is the essential character of a deprivation of liberty? … three components can be derived from Storck …, confirmed in Stanev …, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state.”

The President referred, by way of shorthand, to these three components as Storck components (a), (b) and (c); sometimes they are referred to as Storck limbs (1), (2) and (3). To ensure clarity of exposition, he used the phrase “deprivation of liberty” to describe the state of affairs where all three components of Storck are satisfied, that is, where there is a deprivation of liberty within the meaning of Article 5(1) which therefore engages the State’s obligations under Articles 5(2)-(4). In contrast, he used the word “confinement” to describe the state of affairs referred to in Storck component (a).

He took Storck components (a), (b) and (c) in turn, starting with Storck component (c). It is so obvious that where a child is subject to a care order (whether interim or final) there is involvement and “responsibility” by the State satisfying Storck component (c) – both the State in the form of the Court and the State in the form of the local authority named in the care order – that the point requires neither elaboration nor citation of authority.

Turning to Storck component (b), what was important for present purposes were two points:

  1. First, where a child is subject to a care order (whether interim or final) neither the local authority nor a parent can exercise their parental responsibility in such a way as to provide a valid consent for the purposes of Storck component (b);
  2. Secondly, a foster carer does not have parental responsibility enabling the carer to provide a valid consent for the purposes of Storck component (b).

Pausing there, it follows that, in relation to a child who is subject to a care order, the question of whether there is a “deprivation of liberty” within the meaning of Article 5(1) engaging the State’s obligations under Articles 5(2)-(4), will turn on whether there is a “confinement” as referred to in Storck component (a). So the crux of the analysis for present purposes relates to Storck component (a).

Cheshire West formulates the “acid test” of whether Storck component (a) is satisfied as being (see the judgment of Lady Hale, paragraphs 48-49, 54):

“whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives.”

It will be seen that there are two aspects of the “acid test”: “complete supervision and control” and not being “free to leave”. These are two separate requirements.

In this connection, there are two important points to be noted. The first is that there is a clear distinction between a “deprivation of liberty” within the meaning of Article 5 and a restriction on liberty of movement governed by Article 2 of Protocol No 4. The second point, as the Strasbourg Court said in HL v United Kingdom (2004) 40 EHRR 761, paragraph 92, is that whether the relevant accommodation is “locked” or “lockable” is not determinative of whether there is, as we would now put it, a “confinement” as referred to in Storck component (a). This is an important point of principle.

Typically, a “young” child living with his parents would be living in circumstances amounting to confinement in the Storck sense, but would not be deprived of his liberty so as to engage Article 5.  Nor would a similar child living with foster carers.  The question in relation to the child in care was, at what point in his development, and by reference to what criteria, was it to be determined that the circumstances amounting to confinement engaged Article 5.  The answer depended more on supervision and control than freedom to leave. Lord Kerr’s analysis in Cheshire West was crucial: the restrictions to which the child in care was subject had to be compared with those applicable to a child of the same age, station, familial background and relative maturity, whose freedom was not limited.  Although each case had to be determined on its facts, as a rule of thumb, a 10-year-old under constant supervision was unlikely to be being deprived of his liberty, an 11-year-old might be, but the court would more readily conclude that a 12-year-old was.

Key elements of an Article 5 compliant process – Confinement would be lawful if it was necessary and proportionate and had been authorised by the High Court in the exercise of its inherent jurisdiction.  An application to the Court had to be made where the child’s circumstances arguably constituted a deprivation of liberty. There had to be an oral hearing in the Family Division.  The child had to be a party, had to have a guardian, and should be permitted to express their wishes and feelings if of an age to do so.  The evidence had to address the nature of the regime in which the child was to be placed; the child’s circumstances and prognosis; why the proposed regime was necessary and proportionate; the views of the parents and independent reviewing officer; and the most recent care plan, reviews and reports on the child’s physical and mental health.  An assertion that the child had the capacity to consent to the confinement would usually have to be supported by evidence from the child, a psychologist or a psychiatrist.  Although “bulk” applications were unlawful, a number of separate cases could be heard together or in sequence before one judge if there was significant evidential overlap. The Court did not have to specifically authorise each element of the circumstances constituting the confinement; it was sufficient for the order to authorise the child’s deprivation of liberty at “placement X” as described in some cross-referenced document, and the use of medication and restraint if appropriate.  If, at the outset of care proceedings, there was a real likelihood that a deprivation of liberty authorisation might be required, the proceedings should be issued in the Family Court.

Continuing review is crucial to the continued lawfulness of any confinement. There have to be regular reviews by the local authority and a review by a Judge at least once a year, or sooner if there was a significant change in the child’s condition or if as different placement is proposed. The child has to be a party to the review and has to have a guardian. If there has been no significant change of circumstances, the review could be conducted on the papers.

 

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 »

 

Registered Nurses

August 4th, 2017 by James Goudie QC in Social Care

The issue in Forge Care Homes Ltd v Cardiff & Vale University Health Board (2017) UKSC 56 was whether it is the NHS or local authorities (with means-tested contributions from clients) who are responsible for paying for the work done by registered nurses not only in health care settings but also in social care settings.  The Supreme Court, allowing an appeal by local authorities has unanimously held that, on the correct interpretation of Section 49 of the Health and Social Care Act 2001 (exclusion of nursing care from community care services), it is the NHS who are responsible for the payment. Read more »

 

Social Care

July 10th, 2017 by James Goudie QC in Social Care

Individuals claim to be an unaccompanied child asylum seeker.  The local authority assesses their ages.  It decides that they are not children, they are not under 18.  On that basis it has no functions in relation to them under the Children Act 1989 (“CA 1989”). However, pursuant to CA 1989, the authority had been providing services pending its assessment.  At the same time that the authority provided reasons for its age assessment decision it stopped providing their services.  That was in accordance with its policy or practice.  Is that policy or practice of simultaneous over 18 age assessment decision and withdrawal of services under CA 1989 unlawful, as being procedurally unfair and contrary to ECHR Article 8?  Read more »

 

Local Government Election Court

June 23rd, 2017 by James Goudie QC in Elections and Bylaws, Social Care

In R (Rahman) v Local Government Election Court (2017) EWHC 1413 (Admin) a Divisional Court (Lloyd Jones LJ and Supperstone J) refused the Applicant’s application to amend the grounds of his application for judicial review of a decision of the Local Government Election Court which found the Applicant personally guilty and guilty by his agents of a number of electoral offences under the Representation of the People Act 1983 (“the 1983 Act”). The findings of the Election Court had the effect of automatically disqualifying the Applicant from holding elected office until 23 April 2020. Read more »

 

National Minimum Wage

May 22nd, 2017 by James Goudie QC in Social Care

The three appeals to the Employment Appeal Tribunal in cases including Focus Care Agency Ltd v Roberts, UKEAT/0143/16/DM, consider the proper approach to the question whether employees who “sleep-in” in order to carry out duties if required engage in “time-work” for the full duration of the night shift, or whether they are entitled to the National Minimum Wage, under the National Minimum Wage Act 1998 and the National Minimum Wage Regulations 1999 and 2015, only when they are awake and carrying out relevant duties. Read more »