Looked After Children

March 18th, 2022 by James Goudie QC in Social Care

On unregulated accommodation for “looked after” children under 16, and Regulation 27A of the Care Planning and Place Review (England) (Amendment) Regs 2021, S.I.2021/161, and an unsuccessful challenge in relation to irrationality, the PSED and consultation, see R (Article 39) v SoS (2022) EWHC 589 (Admin).

 

Disabled Adults

December 22nd, 2021 by James Goudie QC in Social Care

Section 1 of the Care Act 2014 (the Act) creates a general duty for local authorities to promote individual well-being (not defined in the Act) when exercising a function under Part 1 of the Act. Section 9 creates a duty to assess an adult’s needs for “care and Support”. . . Section 13 imposes a duty to determine whether any assessed needs meet the relevant eligibility criteria under Regulations. Section 18 imposes a duty to meet the needs of disabled adults for both “care” and “support”. Section 19 confers a power to meet an individual’s needs for “care and support” in circumstances where the Section 18 duty does not arise. By Sections 24 & 25 a Care and Support Plan must be prepared.

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Care Workers

October 25th, 2021 by James Goudie QC in Social Care

The Court of Appeal in SoS for Justice v A Local Authority (2021) EWCA Civ 1527 addresses the question whether care workers are in peril of committing a criminal offence under Section 39 of the Sexual Offences Act 2003 (care workers: causing or inciting sexual activity) when they make the practical arrangements for a 27 year old man to visit a sex worker in circumstances where he has capacity within the meaning of the Mental Capacity Act 2005 to consent to sexual relations and to decide to have contact with a sex worker but not make the arrangements himself. The answer given is that the care workers risk committing the offence.

The Court of Appeal also says that it’s interpretation of Section 39 does not infringe the ECHR. The Court of Protection cannot endorse an act that would be unlawful. The motive of the care workers is irrelevant.

The situation is entirely different from situations such as a care worker arranging private time for a long married couple when it is known that this will likely include sexual activity.

 

Placements

September 13th, 2021 by James Goudie QC in Social Care

Following the decision of the Supreme Court in Re T (2021) UKSC 35, the High Court in Tameside MBC v AM (2021) EWHC 2472 ( Fam) holds that, notwithstanding the subsequent amendment of the Care Placement etc Regulations , it is open to the Court under its inherent jurisdiction to authorise the deprivation of liberty of a child in a placement that the amended Regulations prohibited. The Judge addresses the protective inherent jurisdiction generally and the importance of anticipating and preventing harm from para 47. The inherent jurisdiction may be used notwithstanding the existence of a statutory
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Age Assessments

August 9th, 2021 by James Goudie QC in Social Care

On the fair conduct of age assessment processes and the weight to be attributed to dental and height evidence, see R (Nanton) v Waltham Forest LBC (2021) EWHC 2241 (Admin).

 

INSUFFICIENT PLACES

July 30th, 2021 by James Goudie QC in Social Care

There are insufficient places available in registered secure children’s homes. That is the context of T (A Child) (2021) UKSC 35. The Supreme Court holds that the High Court has inherent jurisdiction to grant an application by the local authority to deprive a child of his or her liberty in other accommodation.

 

Age Assessments

July 27th, 2021 by James Goudie QC in Social Care

In R (Birmingham City Council) v Croydon LBC (2021) EWHC 1990 (Admin) Morris J reviews the role and duties of the Home Office and local authorities when presented with a person who claims to be an Unaccompanied Asylum Seeking Child. The starting point for local authorities is that they have duties under the Children Act 1989. They must provide accommodation and support to children in need in their area. There is no specific duty to carry out an age assessment.

What there is is a duty to decide to assess a child’s needs under Section 17. The authority has to take reasonable steps to investigate whether the person concerned is a child. When there is doubt then there is a duty to carry out an age assessment.

 

Looked After Children

June 30th, 2021 by James Goudie QC in Social Care

In Salford City Council v W (2021) EWHC 1689 (Fam) MacDonald J reviewed the authorities and outlined the approach for determining whether a child was “looked after” for the purposes of Part 3 of the Children Act 1989. It sets out the principles which apply when deciding whether a child has been accommodated by a local authority under Section 20, so that he or she is a “looked after child” within the meaning of Section 22, rather than simply having been placed, pursuant to a private arrangement, with foster parents.

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Age Assessment

May 24th, 2021 by James Goudie QC in Social Care

In R (AXA ) v Hackney LBC (2021) 1345 ( Admin) the claimant said that he was 17. The Council assessed him to be at least 21. They declined to provide him with accommodation suitable for a 17 year old. He sought a mandatory interim injunction requiring the Council to place him in “ claimed age appropriate accommodation” and “ provide support for his living needs”.  Garnham J noted, at para 21, that in accommodation duty cases an injunction will not generally be granted where the applicant cannot show a “ strong prima facie case “, but said,,at para 22, that there are circumstances where the Court may not insist on a strong prima facie case. Context is everything. Garnham J concluded, at paras 23 and 24, that there is “ no hard and fast rule” , but the fact that what is sought is mandatory is “ one factor which can properly be taken into account in assessing the balance of convenience.” The strength of the claimant’s case, so far as it can be taken into account, is also a factor to be taken into account in the balance of convenience. See further paras 42-48 inclusive.

 

Ordinary Residence

April 1st, 2021 by James Goudie QC in Social Care

The approach to the question of “ordinary residence” under the Mental Health Act 1983 is different from that under National Assistance Act 1948/Care Act 2014. So held by Linden J in R (Worcestershire County Council) v SoS (2021) EWHC 682 (Admin). LA 1 provided after-care services for a person discharged from hospital after being detained there under Section 3 of the 1983 Act. LA 1 placed the person in a care home in the area of LA 2. Then that person was detained again. When they were discharged again after the second period of detention, was it LA 1 or LA 2 who was responsible for the second period of after-care? Answer: LA 2. Reason: for the purposes of Section 117 (3) of the 1983 Act they were “ordinarily resident” in LA 2’s area “immediately before” the second period of detention.