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.

 

Ordinary Residence

February 15th, 2021 by James Goudie QC in Social Care

R ( Lancashire County Council ) v SoS for Health and Social Care  (2021) EWHC 268 (Admin ) concerned “ ordinary residence” under Section 21 of the National Assistance Act 1948. In particular it concerned the deeming provision in Section 24(5) of the 1948 Act, and the situation when arrangements for accommodation should have been made, but were not. The Judge held that the “ should have “ requirement includes (1) the undertaking of any assessment that should have been undertaken under Section 47 of the National Health Service and Community Care Act 1990 at the relevant date, having regard to the low threshold for such an assessment, and (2) disregarding resources available to meet the need that fall to be disregarded under Section 21(2A) of the 1948 Act, such as PI damages, administered in this case by a CoP appointed Deputy.

 

Citizenship

August 6th, 2020 by James Goudie QC in Social Care

Does a local authority have power to take steps to change the nationality of a child in care, to British citizenship, against the wishes of the child’s parents? No, says the Court of Appeal, in Re Y, (2020) EWCA Civ 1038. An application must be made to the High Court.

 

Mental Capacity

July 7th, 2020 by James Goudie QC in Social Care

In Tower Hamlets LBC v PB (2020) EWCOP 34 Hayden J has applied the presumption of capacity in the Mental Capacity Act 2005 and highlighted that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. The Judge gave guidance on assessing the capacity of those who are alcohol dependent to decide where they live and what type of care they receive, and re-stated the relevant principles.

 

Some thoughts on Local Authorities and Coronavirus

March 18th, 2020 by Peter Oldham QC in Decision making and Contracts, Human Rights and Public Sector Equality Duty, Judicial Control, Liability and Litigation, Local Authority Powers, Social Care

This note sets out some information and personal views about local authority decision making in the light of the current crisis.

Read more »

 

Deprivation of Liberty

February 12th, 2020 by James Goudie QC in Social Care

In R (Jallow) v SSHD (2020) UKSC 4 the Supreme Court considers, in the context of an immigration curfew, whether the meaning of “imprisonment”, at common law, should be aligned with the concept of deprivation of liberty (“DoL”) under Article 5 of the ECHR.  Lady Hale explains that the ECHR distinguishes between DoL and restriction of physical liberty.   Whether there has been a DoL depends on a number of factors.  The Supreme Court unanimously declines to accept the argument by the SoS that the time has come to align the domestic law of false imprisonment with the concept of DoL.  This would be a retrograde step. It would restrict the classic understanding of imprisonment at common law with the “much more nuanced” concept of DoL. There is no need for the common law to draw a distinction between deprivation and restriction of liberty, and good reason not to do so. It is possible for there to be imprisonment at common law without a deprivation of liberty under ECHR Article 5.  It was not necessary to decide whether the concept is true.

 

Deprivation of Liberty

February 11th, 2020 by James Goudie QC in Social Care

In Hertfordshire Council v NK (2020) EWHC 139 (Fam) the question before MacDonald J was whether the Court should grant a deprivation of liberty order (“DOL Order”) under the inherent jurisdiction of the High Court in respect of AK, aged 16, and with a diagnosis of ADHD and a conduct disorder, leading to a history of self-harm, suicidal ideation and low mood. The Council’s application for a DOL Order was opposed by AK’s Children’s Guardian, AK’s mother, NK, did not appear, and was not represented.

Read more »

 

Looked-after needs

October 23rd, 2019 by James Goudie QC in Social Care

R (Aburas) v Southwark LBC (2019) EWHC Civ 2754 (Admin) was, as the Judge put it, a claim for judicial review is found on that part of the legal map where there is an intersection between (i) local authority functions of assessing and meeting adult needs for care and support under Part I of the Care Act 2014 (CA14) and (ii) human rights arguments invoking the Convention rights in Article 3 (protection from inhuman and degrading treatment) and Article 8 (right to respect for private and family life) of Schedule 1 to the Human Rights Act 1998 (HRA98).   The essence of the claimant’s argument was that, linked to but wider than being destitute and in need of accommodation and subsistence, he had a ‘looked-after need’ of support by a social worker to access food and medication, which support required for its effective delivery the provision of accommodation, refusing which supported accommodation had consequences so serious as to breach his Convention rights. The essence of the Council’s’ defence of the claim was that, even if (which was not accepted) the claimant was destitute and in need of accommodation and subsistence, it is to the Home Secretary through Asylum Support that he must look for human rights-compatible action, the Council having lawfully discharged its statutory ‘looked-after needs’ functions under CA14 read with HRA98. Read more »

 

Assessment of need

February 4th, 2019 by James Goudie QC in Social Care

In R (JA) v Bexley LBC (2019) EWHC 130 (Admin) there was a decision, following an assessment, that children were not in need of accommodation and support pursuant to Section 17 of the Children Act 1989 (“the 1989 Act”). The Judge described the legal framework as follows:-

(1)       The general duty under Section 17(1), together with paragraph 1 of Schedule 2 to, the 1989 Act imposes a duty upon local authorities to assess the needs of putative children in need: R (G) v LB Barnet [2004] 2 AC 208;

(2)       A child without accommodation is a child in need within the meaning of Section 17(10): R (G) v Barnet; Read more »

 

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.