In R (DF) v Essex County Council (2024) EWCA Civ 1545 the Court of Appeal confirms that a child who is homeless for the purposes of Section 175 of the Housing Act 1996 will not necessarily require accommodation for the purposes of Section 20 of the Children Act 1989. The Children Act question whether a child requires accommodation is to be answered as a matter of factual evaluation, applying that phrase in its natural and ordinary meaning, and without reference to the homelessness definition in the Housing Act.

Two FTT decisions consider the above : Little Oaks Grimsby Ltd v Ofsted (2024) UKFTT 889 in England and Pleasant Valley Care Ltd v Welsh Ministers (2024) UK FTT 911 in Wales.

In the English case the appeal to the FTT was against Ofsted’s decision to suspend the registration to provide childcare at Little Oaks Nursery. The right of appeal was under Regulation 12 of 2008 Childcare Regulations, pursuant to Section 69 of the Childcare Act 2006. The applicable test is set out in Regulation, by reference to “ risk of harm “ as defined in Regulation 13, and for a duration in accordance with Regulations 10 and 11. The burden of satisfying the threshold test under Regulation 9 and of justifying the decision in terms of a legitimate public interest objective and proportionality is upon the Respondent. The standard of proof is “ reasonable cause to believe”. That falls somewhere between balance of probability and reasonable cause to suspect. The contemplated  risk must be one of significant harm.

In the Welsh case the appeal was under Section 26 of the Regulation and Inspection of Social Care (Wales) Act 2016. It was against cancellation of registration as a domiciliary care provider in respect of the regulated activity of personal care. Section 4 of the Act sets out the general objectives of the statutory scheme. Sections 14 and 15 relate to cancellation of registration, and sections 16 and 17 to improvement notices. The Tribunal determines the issue afresh as of the time of the appeal. It makes findings of fact about breaches of relevant requirements and decides whether cancellation of registration is a proportionate and necessary step.

The Department of Health and Social Care has updated Guidance on Part 1 of the Care Act 2014. It addresses ORDINARY RESIDENCE. It makes other changes. It notes that the new Government will not be carrying forward its predecessor’s planned ADULT SOCIAL CARE CHARGING reforms.

In MANSFIELD CARE LTD v NEWMAN ( 2024 ) EAT 128 the President of the EAT holds that an ET erred in finding that TUPE was applicable. A care home was closing down. The care home residents were being moved to one of 2 care homes. There were 2 categories of residents: privately funded and local authority funded. The ET found that there were (1) a business transfer, in respect of the privately funded residents and a service provision change in respect of publicly funded residents. The EAT disagreed. The ET’s reasoning did not support the identification of an economic identity divided in that way that retained its identity, or the identification of an organised grouping of employees that had the principle purpose of carrying out services for the publicly funded residents.

In MM v GREENWICH RLBC (2024) UKUT 179 (AAC) Judge Stout holds that a FTT a First-tier Tribunal when considering an appeal in relation to an education health and care plan for a 16 year old boy had failed to consider whether he had capacity to litigate, and should have appointed his mother as alternative person.  The Upper Tribunal gave a guidance on the approach of the FTT to health and social care recommendations under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017.

The guidance, at paragraph 108, is as follows.

• Although there was no freestanding right of appeal against the contents of the health and social care sections of the EHCP, once an appeal had been brought under s.51 of the Act, the tribunal’s powers to make recommendations under the 2017 Regulations were an equal part of its jurisdiction.
• The fact that the local authority or responsible commissioning body was only required to provide a reasoned response to the tribunal’s recommendations rather than actually comply was not a reason for the tribunal to regard its decision-making task as any less important.
• The tribunal exercised an inquisitorial jurisdiction in relation to health and social care in the same way as it did in relation to special educational needs.
• The primary burden was on the parties to put before the tribunal the evidence necessary to make out their respective cases. If they failed to do so, the tribunal could decide the case on the evidence before it, or direct further evidence.
• The tribunal was not required before deciding what to order to ensure that the various statutory steps that the local authority should have carried out before making or amending the EHCP had been completed.
• There was no statutory requirement in relation to assessment before health or social care provision could be included in an EHCP, nor did the tribunal have any express jurisdiction to order or recommend that either the responsible commissioning body or the local authority carry out an assessment.
• Although the tribunal was not required to comply with the decision-making frameworks applicable to the local authority or responsible commissioning body, it might be relevant for it to take certain elements into account when making recommendations.
• The social care legislative framework might also inform the tribunal’s approach where there had been a breakdown in relationships between parent and social services.
• As a matter of good practice, in cases where health and social care recommendations were sought under the 2017 Regulations, the tribunal should require the local authority or responsible commissioning body to provide it with the relevant local criteria.
• If the evidence the tribunal had was “thin”, it could adjourn for further evidence, or refuse to make recommendations. There was in principle nothing wrong with making recommendations on a time-limited basis if the evidence available only related to a limited period.

In J ( LOCAL AUTHORITY CONSENT TO DEPRIVATION OF LIBERTY ) ( 2024 ) EWHC 1690 ( Fam ) Lieven J hols that a local authority which held parental responsibility for a child under the age of 16, under a Care Order, pursuant to Section 20 of the Children Act 1989, could consent to the deprivation of liberty of that child, as corporate parent, pursuant to section 33 of that Act. No Deprivation of Liberty Order was required, notwithstanding that there was a deprivation of liberty within the meaning of Article 5 of the ECHR. The decision to deprive the child of his liberty was an exercise of the authority’s statutory duties to him. There was an obligation as carer to keep him safe. Far from the restrictions amounting to a serious infringement of his rights that no local authority could lawfully consent to, they were restrictions essential to securing his best interests. Indeed they were required by the positive obligations under Article 2 of the ECHR.

The Home Secretary had not been under an obligation to conduct a global assessment of the impact of the revocation of a nursing care provider’s licence to sponsor skilled migrant workers, when the provider had committed a serious breach of Home Office Guidance on the sponsorship scheme. So held in R ( ONE TREE ESTATES LTD ) v SSHD ( 2024) EWHC 1644 ( Admin ).

R (CARE NORTH EAST NORTHUMBERLAND) v NORTHUMBERLAND COUNTY COUNCIL (2024) EWHC 1370 (Admin) is about weekly fees paid by a local authority to care home operators. The Claimant is an unincorporated association of whom 24 of Northumberland’s 70 care home operators are members. The case features the interrelationship between the following: (1) a local authority’s general statutory duty of promoting diversity and quality in the provision of services (Care Act 2014 s.5) and applicable Statutory Guidance (2014 Act s.78); (2) central Government’s statutory power to pay conditional local authority grants; (3) provisions within an agreement (“the 2021 Agreement”) between a local authority and a care home operator; and (4) basic public law duties including legally sufficient enquiry and legally adequate reasons. This case also features an important distinction between fee level sufficient (a) to cover inflationary cost increases and (b) to sustain the efficient and effective operation of a care home market. The 2021 Act Agreement was a contract between the Defendant (“the Council”) and each relevant care home operator. It is an SP Contract Arrangement as described in the Statutory Guidance. It addresses the relationship between the Council and the care home operator, as to placements of individuals in care homes. It came into effect on 1 April 2021 and governed by a three-year relationship. It included an annual fee revision. The weekly fees had two elements. Element A was staffing costs. Element B was non-staffing costs.

By s.5(1) of the 2014 Act, Parliament imposed the general duty on a local authority to “promote the efficient and effective operation of a market in services for meeting care and support needs with a view to ensuring that any person in its area wishing to access services in the market has “three things: (a) “a variety of providers to choose from who (taken together) provide a variety of services”; (b) “a variety of high quality services to choose from”; and (c) “sufficient information to make an informed decision about how to meet the needs in question”. As a general duty (or target duty), this does not confer individual rights, but it is nevertheless capable of enforcement in an individual case.

By s.5(2)(d) of the 2014 Act, Parliament required a local authority, in performing that general s.5(1) duty to “have regard … in particular” to “the importance of ensuring the sustainability of the market”, both “in circumstances where it is operating effectively”, and also “in circumstances where it is not”. This mandatory relevancy has been described as the “sustainability factor”.

In the context of local authority care home placements and fee rates, notwithstanding that these rates are included within contracts between the local authority and the care home provider, conventional grounds for judicial review apply to a decision about fee increases, where sufficiency to sustain the efficient and effective operation of a care home market is legally relevant. This is a public function. Parliament has imposed important statutory duties, in the general duty (s.5(1)) and the mandatory relevancy of the sustainability factor (s.5(1)(d)). Parliament has provided (s.78) for Statutory Guidance for local authorities to follow (absent good reason for departure). That Statutory Guidance itself recognises SP Contract Arrangements, and decisions about fee levels in SP Contract Arrangements, as an important means of implementing and discharging the statutory duties. Fordham J said, at para 38:-
“There is then this question. How does the content of the provisions within an SP Contract Arrangement fit alongside the contextual shape of the conventional grounds for judicial review. The principled position is this:

(i) The contextual application of conventional judicial review grounds can be informed by the contents of an SP Contract Arrangement. This cuts both ways, where the agreement makes express provision for the local authority’s decision-making approach is settling care home fees. First, the judicial review court may need to ensure that conventional judicial review standards – contextually applied – do not go beyond an express provision for the local authority’s decision-making approach. Secondly, the judicial review court may need to ensure that conventional judicial review standards – contextually applied – do not fall short of an express provision for the local authority’s decision-making approach. No more; but no less…

(ii) If a local authority chose a policy or a strategy or a scheme or even write letters, if it gave clear and unambiguous and qualified representations as to what it would do, these would inform the conventional grounds for judicial review. Public law recognises the difference that a promise can make, through the principles of legitimate expectation…”

Fordham J said, at para 52:-
“In my judgment, a claim for judicial review which asks a judicial review Court to quash a decision as to local authority fees, decided as an allocation of local authority resources in the run up to a budget for a new financial year, should be challenged with (a) high degree of promptness and (b) a request for heavy expedition. Then, if the local authority slows down the process – because of its position in a letter of response or because it insists on a long time for a response or because it insists on a separate permission stage at which it fails to administer a clean knock-out blow – it brings any problems on itself if the proceedings are delayed. The rule of law applies to budget related decisions. The Administrative Court has mechanisms for expedited cases. Permission for judicial review can be refused in relation to some remedies and not others.”

None of the grounds of challenge succeeded.

In R ( CAMPBELL ) v EALING LBC ( 2024 )EWCA Civ 540 the Court of Appeal considers the interaction between the Care Act 2014 and the provisions of the Housing Act 1996 on allocation of housing and on homelessness. The Care Act does not disturb the Housing Act.. Allocation of housing accommodation is to proceed only in accordance with the Housing Act. Section 23 of the Care Act does not have a contrary effect.

In R ( YVR ) v BIRMINGHAM CITY COUNCIL ( 2024 ) EWHC 701 ( Admin ) the Court dismisses a claim for judicial review of the Council’s policy of charging for the provision of adult social care in the community. The Council was in exceptional financial difficulty. Its position to default to charging the statutory maximum was not manifestly without reasonable foundation.