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.

For there to be a deprivation of liberty, the individual has to be under constant supervision and control, and not be free to leave. Peterborough City Council v Mother ( 2024 ) EWHC 493 ( Fam ) holds that while a severely disabled 12 year old girl was undoubtedly under constant supervision and control, that was in order to meet her care needs, not to prevent her leaving her home, and so there was no deprivation of liberty in her case.

When assessing whether an asylum seeker’s needs for which it was responsible under the Care Act 2014 included accommodation, a local authority should ignore any current or potential accommodation by SSHD under Section 95 of the Immigration and Asylum Act 1999. The principles regarding the interplay between Section 95 and the National Assistance Act 1948 are applicable to the interplay between Section 95 and the Care Act 2914.

So held in R ( TMX ) v Croydon LBC ( 2024 ) EWHC 129 ( Admin ).

In R ( BC )v SURREY COUNTY COUNCIL ( 2023 ) EWHC 3209 ( Admin ) a challenge succeeded to the  Council’s refusal to provide suitable accommodation under Section 20 ( 1 )  of the Children Act 1989 to a 17 year old child as a “ child in need “ within their area. Once the criteria under Section 20 are met, the duty is immediate and unqualified. The authority must accommodate the child.It cannot resist the duty because of lack of resources, or because it considers that provision can or should be made under some other power, or because some other authority or body, such as the local housing authority, can provide accommodation under a different legislative scheme. The child was without suitable accommodation; and his mother was “ prevented “ from providing him with suitable accommodation. The widest possible scope must be given to this provision. It makes no difference whether the reason is one which the carer has brought about by her own act or is one which she was resisting to the best of her ability.

R (SB) v NEWHAM LBC and SSHD (2023) EWHC 2701 (Admin) concerns the interaction between a local authority’s obligations under the Care Act 2014 (“CA 2014”) and the obligations of the Secretary of State for the Home Department (“SSHD”) under s.95 of the Immigration and Asylum Act 1999 (“IAA 1999”) in relation to the provision of accommodation to asylum seekers with eligible care needs.

CA 2014 is the applicable statutory scheme for the provision of social care for adults. Section 1 imposes on local authorities a general duty “in exercising a function” in relation to a person under the first part of CA 2014, to promote that person’s wellbeing. Section 1(2) defines a person’s wellbeing. Section 9 imposes a duty on a local authority to undertake a “needs assessment” where it appears to a local authority that an adult may have needs for care and support. In such circumstances, the authority must assess whether the adult does have such need and, if so, what they are. Read more »

The Information Commissioner has issued Guidance on data protection consideration when sharing personal information for childcare purposes.  The theme is that data protection law permits information sharing in a fair and proportionate way when that is required (1) in order to identify children at risk of harm and (2) safeguard them from harm. Indeed appropriate information sharing is central to safeguarding children from harm effectively and promoting their wellbeing. Read more »