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.

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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.

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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.

 

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 »