Accommodation

January 30th, 2017 by James Goudie QC in Social Care

The Children Act 1989 (“CA 1989”) contains coercive powers.  Section 20, however, is not intended to, and does not create powers of compulsion.  Section 20 falls within Part III of CA 1989, the essence of which is an emphasis on the assumption of responsibility for care and the provision of accommodation in circumstances which are voluntary.  Section 20(1) imposes a duty upon a local authority to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of defined situations.  However, Section 20(6) states that, before providing accommodation, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare, ascertain the child’s wishes and feelings regarding the provision of accommodation, and give due consideration to such wishes and feelings as they have been able to ascertain; Section 20(7) states that (in the case of a child under 16) a local authority may (generally) not provide accommodation if any person who has parental responsibility for the child and is willing and able to provide accommodation for the child or arrange for accommodation to be provided for the child, objects; and Section 20(8) provides that any person who has parental responsibility may (generally) at any time (without any requirement for notice) remove the child (under 16) from accommodation provided by or on behalf of the local authority.  Section 20 imposes a duty on the relevant local authority to provide accommodation to children if the conditions of subsection (1) or (3) are met; and a discretion to do so if the conditions of subsection (4) or (5) apply; but all this is subject to subsections (7) to (11). There is a vital distinction between voluntary assumption of care and the provision of accommodation on the one hand, and compulsory care, for example by an Emergency Protection Order pursuant to Section 44, or police powers under Section 46, on the other. Read more »

 

DoLS

December 23rd, 2016 by James Goudie QC in Social Care

The issue in SoS for Justice v Staffordshire County Council and SRK (2016) EWCA Civ 1317 was whether, in order for the United Kingdom to avoid being in breach of Article 5(1) of the European Convention on Human Rights (“the Convention”), it is necessary for a welfare order to be made by the Court of Protection (“the CoP”) pursuant to the Mental Capacity Act 2005 (“the MCA”) in a case where an individual, who lacks the capacity to make decisions about where to live and the regime of care, treatment and support that he should receive, is to be given such care, treatment and support entirely by private sector providers in private accommodation in circumstances which, objectively, are a deprivation of his liberty within the meaning of Article 5(1) of the Convention (“Article 5(1)”). The appeal was by the Secretary of State for Justice (“the SoS”) from a welfare order made on 24 May 2016 pursuant to the MCA ss. 4 and 16 by Charles J as the Vice President of the CoP (“the May 2016 order”). By the May 2016 order the Judge (1) declared that (a) the second respondent, SRK, lacked capacity to conduct the proceedings and to make decisions relating to where he should live and what care and treatment he needed, and (b) the restrictions in place pursuant to his care plan constituted a deprivation of SRK’s liberty for the purposes of the MCA; and (2) (among other things) ordered that it was in SRK’s best interests to reside at Greenglade, his home (“the property”), and to receive care and support pursuant to care plans dated 1 July and 5 July 2015; and, to the extent that those arrangements and the restrictions in place pursuant to the care plans were a deprivation of SRK’s liberty, such deprivation of his liberty was thereby authorised as being in his best interests.  The SoS’s stance was that the alleged deprivation of liberty (arising out of the private care arrangements in SRK’s particular circumstances) was not imputable to the State and therefore it was not a deprivation of liberty for the purposes of the MCA. It was common ground that (1) SRK lacked capacity to make decisions on the regime of care, treatment and support that he should receive; (2) SRK’s care regime was in his best interests (within the MCA ss.1(5)) and the least restrictive available option to best promote his best interests (as required by the MCA s.1(6)); (3) the property was SRK’s private residential property; (4) the accommodation and package of care were arranged without any involvement by the Council; (5) the package of care was managed by a private specialist brain injury case manager; (6) the care was funded using compensation money; (7) the carers were provided to SRK privately; and (8) the arrangements confined SRK to the property for a not negligible length of time, and he was there subject to continuous supervision and control and was not free to leave. Read more »

 

Social Care

November 21st, 2016 by James Goudie QC in Social Care

Under Section 117 of the Mental Health Act 1983 a person who has been compulsorily detained in a hospital for medical treatment for mental disorder under Section 3 of that Act is entitled, upon ceasing to be detained and leaving the hospital, to be provided with after-care services by the relevant authorities, being the responsible clinical commissioning body and the local social services authority, until such time as they are satisfied that he is no longer in need of such services.  On a proper interpretation of Section 117, is a local authority, when deciding the question of need, entitled to take into account the claimant’s available funds represented by personal injury damages? No, holds the Administrative Court in Manchester, in Tinsley v Manchester City Council [2016] EWHC 2855 (Admin).  The Judge held that the City Council was not entitled to refuse to provide after-care services under Section 117 when an applicant was in receipt of a personal injury award, notwithstanding that the award included an element for the future cost of his care, and that there was double recovery.

 

Listed Buildings/ Reasons

November 7th, 2016 by James Goudie QC in Planning and Environmental, Social Care

A LPA has a duty under Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have “special” regard to the desirability of preserving the listed building and its setting. In Palmer v Hertfordshire Council (2016) EWCA Civ 1061 the Court of Appeal held, consistently with paragraphs 132 and 136 of the NPPF, that (i) the concept of preserving the listed building or its setting means “doing no harm”, (ii) that could include not only encroachment or visual intrusion but also noise and smell, and (iii) if there is harm that must be given considerable importance and weight, but (iv) the weight to be given is not uniform and will depend on, amongst other things, the extent of the assessed harm and the heritage value of the asset in question, (v) the degree of harm and appropriate mitigation measures are a matter for the judgment of the LPA, and (vi) the existence of the statutory duty does not alter the approach that the Court should take to an examination of the reasons for the decision given by the decision maker.  The Court of Appeal upheld a grant of permission for poultry boiler units to be erected close to a disused railway station, that is a Grade II listed building.  The Court at paragraphs 7 and 8 set out the approach to the examination of reasons and to the reading of an officer’s report, as follows:-

“7.      The existence of the statutory duty under section 66(1) does not alter the approach that the court takes to an examination of the reasons for the decision given by the decision maker: Jones v Mordue [2015] EWCA Civ 1243; [2016] 1 WLR 2682. It is not for the decision maker to demonstrate positively that he has complied with that duty: it is for the challenger to demonstrate that at the very least there is substantial doubt whether he has. Where the decision maker refers to the statutory duty, the relevant parts of the NPPF and any relevant policies in the development plan there is an inference that he has complied with it, absent some positive indication to the contrary: Jones v Mordue at [28]. In examining the reasons given by a local planning authority for a decision, it is a reasonable inference that, in the absence of contrary evidence, they accepted the reasoning of an officer’s report, at all events where they follow the officer’s recommendation: R (Fabre) v Mendip DC (2000) 80 P&CR 500, 511; R (Zurich Assurance Ltd) v North Lincolnshire Council [2012] EWHC 3708 at [15].

8.        In reading an officer’s report, the court must not impose too demanding a standard: R (Morge) v Hampshire County Council [2011] UKSC 2, [2011] 1 WLR 268 at [36]. Such reports are addressed to a knowledgeable readership including members of the planning committee who, by virtue of that membership, may be expected to have substantial local and background knowledge. That background knowledge includes a working knowledge of the statutory test for determination of a planning application: R (Zurich Assurance Ltd) v North Lincolnshire Council at [15]. Where a claim for judicial review is based on alleged deficiencies in an officer’s report to the planning committee it normally needs to be shown that the overall effect of the report significantly misleads the committee about material matters which remain uncorrected at the meeting of the planning committee before the relevant decision is taken: Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997). The ultimate test is whether the reasons enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues. The reasoning must not give rise to a substantial doubt (as opposed to what has been called a “forensic doubt”) as to whether the decision maker erred in law, although such an inference will not be readily drawn: South Bucks DC v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 at [36].”

 

 

Social Care

November 2nd, 2016 by James Goudie QC in Social Care

In Rotherham MBC v M and others (2016) EWHC 2660 (Fam) Cobb J held that it was appropriate to make a reporting restriction order sought by the Council and the Police preventing the identification not only of a very vulnerable teenage girl who was at risk of sexual exploitation but also of four adult males who had associated with her, but against whom no findings of sexual exploitation had been made. This was because naming these males risked “jigsaw identification” to the vulnerable girl.  Cobb J concluded:-

“45.    As I have indicated earlier in this judgment, there is a significant public interest in the investigation and detection of child sexual exploitation, in the state’s protection of its victims, and in the prosecution of those who perpetrate it. There is national public interest in the incidence (indeed the prevalence) of this crime in the area of Rotherham. For this reason, I decided that it would be right to hold the final hearing of these applications in public, and to name the relevant council. I have no doubt that the media have an important part to play in raising public awareness of this particular type of offence, and in reporting on the court’s approach to it.

46.    It is rightly uncontroversial in this case that Child G’s identity should be protected now and for the future. She is an extremely vulnerable young person; it would be devastating to her to be named publicly in the press as the subject of this application, and a strong deterrent to other young people who may consider coming forward to report offending of this type. Having listened carefully to the evidence of the relevant senior officers, I am satisfied that if I named the associated males, Child G would be quickly identified in the local community in which she lives. That is sufficient on its own to justify the anonymity of the four males. However, quite apart from that factor, I have reached the firm conclusion that there is no true public interest in naming the four associated males, against whom, in the end, no findings have been sought or made. The Article 8 rights of the associated males would be in my judgment significantly violated were they to be publicly exposed in the media as having been implicated to a greater or lesser degree, but not proved to be engaged, in this type of offending. Their rights, on these facts, predominate over the Article 10 rights of the press to report their names while not inhibiting the press from reporting more widely about this case. I have cross-checked these conclusions against the measure of proportionality and have unhesitatingly concluded that no lesser order will suffice; the injunction will therefore extend for their lives until or unless earlier varied or discharged.”

 

 

Level of Support

July 13th, 2016 by James Goudie QC in Social Care

In R (C, T, M and U) v Southwark LBC (2016) EWCA Civ 707 the claimants challenged the lawfulness of the accommodation and the level of financial support provided by Southwark Council to a family who have no right of recourse to public funds.  Three issues were considered by the Court of Appeal: (i) Whether the Council had an unlawful policy or practice of setting financial support to those seeking assistance under Section 17 of the Children Act 1989 (“CA 1989”) at the level of child benefit in the circumstance that they otherwise had no right of recourse to public funds; (ii) Whether the Council had an unlawful policy or practice of setting financial support to those seeking assistance under Section 17 CA 1989 at the level of payments which would have been made to asylum seekers or failed asylum seekers by the Secretary of State under Sections 4 and 95 of the Immigration and Asylum Act 1999 (“IAA 1999) in the circumstance that they otherwise had no recourse to public funds; and (iii) Whether the Council breached the appellants’ Article 8 ECHR rights because it provided them with financial support at a level less than that which it knew was necessary to prevent breach and, if so, whether the appellants are entitled to damages in respect of the breach.

The Court of Appeal observed:-

“12.It is settled law that the section 17 scheme does not create a specific or mandatory duty owed to an individual child. It is a target duty which creates a discretion in a local authority to make a decision to meet an individual child’s assessed need. The decision may be influenced by factors other than the individual child’s welfare and may include the resources of the local authority, other provision that has been made for the child and the needs of other children (see, for example R (G) v Barnet London Borough Council [2003] UKHL 57, [2004] 2 AC 208 at [113] and [118]). Accordingly, although the adequacy of an assessment or the lawfulness of a decision may be the subject of a challenge to the exercise of a local authority’s functions under section 17, it is not for the court to substitute its judgment for that of the local authority on the questions whether a child is in need and, if so, what that child’s needs are, nor can the court dictate how the assessment is to be undertaken. Instead, the court should focus on the question whether the information gathered by a local authority is adequate for the purpose of performing the statutory duty i.e. whether the local authority can demonstrate that due regard has been had to the dimensions of a child’s best interests for the purposes of section 17 CA 1989 in the context of the duty in section 11 Children Act 2004 to have regard to the need to safeguard and promote the welfare of children. It is perhaps helpful to examine that question in a little more detail.

13. Where a person has no right of recourse to public funds (i.e. the person is ineligible as a matter of law to have recourse to public funds or to the payment of sums under the Immigration and Act 1999 [‘IAA 1999’] see, for example section 54 and schedule 3 to the Nationality, Immigration and Asylum Act 2002 [‘NIAA 2002’] and paragraph 6 of the Immigration Rules), that person remains eligible to receive support from a local authority in the exercise of its powers under section 17 CA 1989. That is because, by paragraphs 2 and 3 of Schedule 3 NIAA 2002, there is an exception to the ineligibility of persons who are prohibited from being provided with mainstream housing and welfare benefits where the ineligible person is a child or the provision of section 17 support is necessary for the purpose of avoiding a breach of a person’s Convention rights … The local authority is, however, prohibited from providing accommodation or assistance for such a family pursuant to the Housing Act 1996 [‘HA 1996’].

14. A local authority that provides support for children in need under the 1989 Act is acting under its powers as a children’s services authority (a local social services authority with responsibility for children) not as a local social services authority performing functions relating to homelessness and its prevention, and not as a local housing authority. The limited nature of the local authority’s power is important. …

15. Accordingly, although in this case the local authority provided accommodation and financial support, it did so under section 17 CA 1989 and not as a consequence of any other statutory scheme. In so doing, the local authority was not required to have regard to guidance issued under another statutory scheme, for example the Homelessness Code of Guidance issued under section 182 HA 1996. That said, the overarching obligation imposed on local authorities in England (and their specified partner agencies) by section 11 CA 2004 is to “make arrangements for ensuring that – (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.” That overarching obligation casts the evidential net rather wide so that a decision based on an assessment undertaken for the purposes of section 17 CA 1989 should identify how the local authority has had regard to the need to safeguard and promote the welfare of children both individually (i.e. the subject children as regards the claim) and collectively: …

16. The Secretary of State has issued guidance to local authorities in accordance with section 7 of the Local Authority and Social Services Act 1970 about assessments of need for the purposes of section 17 CA 1989. That guidance is to be followed save in exceptional circumstances (following the principle … that a local authority has liberty to deviate from the Secretary of State’s guidance only on admissible grounds for good reason but without the freedom to take a substantially different course). …

17. There are no categories or sub-divisions of ‘children in need’ in the statutory scheme. That is hardly surprising given the enormous range of circumstances in which children present to the authorities with needs that may require assessment. That is why there is a generic assessment framework with identifiable factors that is the object of the central Government guidance that has been issued. A local authority can be expected to evidence that due regard has been had to the framework dimensions and that there has been a proper appreciation of the potential impact of the decisions that have been made on the best interests of the individual children. The decision maker would be expected to demonstrate that the impact on the individual child’s welfare is proportionate given the other factors to which they are entitled to have regard, for example, the needs of other children and the resources of the local authority.”

“21. Given that the legislative purpose of section 17 CA 1989 in the context of section 11 CA 2004 is different from that in sections 4 and 95 IAA 1999, it would be difficult for a local authority to demonstrate that it had paid due regard to the former by adopting a practice or internal guidance that described as its starting point either the child benefit rate or either of the IAA support rates. The starting point for a decision has to be an analysis of all appropriate evidential factors and any cross-checking that there may be must not constrain the decision maker’s obligation to have regard to the impact on the individual child’s welfare and the proportionality of the same.

22. There is no necessary link between section 17 CA 1989 payments and those made under any other statutory scheme; quite the contrary. The section 17 scheme involves an exercise of social work judgment based on the analysis of information derived from an assessment that is applicable to a heterogeneous group of those in need. That analysis is neither limited nor constrained by a comparison with the support that may be available to any other defined group, no matter how similar they may be to the section 17 child in need. In any event, the circumstances of those who qualify for section 17 support, those who have just arrived seeking asylum and those who have failed in their application to be granted asylum are sufficiently different that it is likely to be irrational to limit section 17 support to that provided for in a different statutory scheme.

23. In so far as it was submitted that destitution as defined by section 95 IAA 1999 i.e. an inability to meet essential living needs or inadequate accommodation, or by section 4 IAA 1999 i.e. destitution in the context of accommodation, is relevant to section 17 CA 1989, the difference between the purposes of the two statutory schemes must be borne in mind. The latter scheme is to be applied to those persons who would otherwise be ineligible for recourse to public funds in order to avoid a breach of their Convention rights. Furthermore, the section 17 scheme, unlike the IAA schemes, is not the subject of regulations that make provision for the support which is to be made available to the defined group for a specific purpose.”

The Court came to the conclusion that there was no basis to challenge the Council’s  decisions based upon a flawed policy or practice that the Council inflexibly fixed its support payments. It did not base its decisions on such things. The Court was equally clear that it would have been inappropriate for the Council to have benchmarked its payments under Section 17 CA 1989 to any other statutory scheme including that applicable under the IAA 1999. Accordingly, the Court did not accept that there had been a breach of Article 8 founding an entitlement to damages.

 

Social Workers

May 19th, 2016 by James Goudie QC in Social Care

The measures in the Queen’s Speech 2016 include a Children and Social Work Bill, to create in England a new system of regulating social workers, by setting up a specialist regulator for the profession, and to create in England a new “Care Leavers Covenant”, underpinned by statutory duties, setting out the entitlements for care leavers.

 

 

Age assessment and litigation fairness

April 27th, 2016 by Peter Oldham QC in Judicial Control, Liability and Litigation, Social Care

The Court of Appeal handed down an interesting and wide- reaching judgment yesterday (26th April 2016) in LB Croydon v Y [2016] EWCA 398. It directly concerns age assessment cases, but the principles enunciated apply to all litigation, private and public.

Y was an asylum seeker who was assessed by LB Croydon for social services needs.  He was assessed as being over 18.  He brought a judicial review age assessment challenge.  The Upper Tribunal  gave directions listing the case for a 4 day hearing.   Five months later, Croydon applied to the UT for an order that the claim should be struck out or stayed unless Y consented to and co-operated fully with (1) a dental examination (including a dental X-ray), (2) a psychiatric examination and (3) an age assessment by two Croydon social workers.

In making this application, Croydon relied on the Court of Appeal’s decision in Starr v National Coal Board [1977] 1 WLR 63.  Starr was a personal injury claim.  Mr. Starr accepted that in preparing its defence, the NCB needed to be advised by a consultant neurologist who had had the opportunity of examining him. But he objected to examination by the particular doctor chosen by the NCB without explaining why.  He said that he was willing to be examined by any other consultant neurologist of similar qualification and experience.  The NCB applied for a stay of all further proceedings until Mr. Starr submitted to an examination by its chosen doctor.  The Court of Appeal upheld the stay that had been granted by the judge.

The UT judge refused Croydon’s application, saying that it was “most unfortunate” that Y’s representatives would not co-operate, but that it would be “too draconian” to stay or strike out the proceedings.  The judge said that Starr did not apply, first, because (unlike Mr. Starr) Y had not conceded that Croydon’s assessments were necessary; and second, because this was public rather than private law litigation.

Overturning the UT judge’s decision, Lord Dyson MR gave the only reasoned judgment, Macur and Lindblom LLJ agreeing.  On the first point, he said at [16] that it didn’t matter whether there was a concession or not: the question was whether the assessments were in fact “reasonably necessary for the proper conduct of Croydon’s defence”.   The UT judge himself had decided that they were.

On the second point, Lord Dyson said at [17] that “there is no basis in principle for confining the Starr principles to private law litigation… The fundamental common law right of a defendant to defend itself in litigation to which Scarman LJ referred [in Starr] applies in any litigation”.

This is important since it makes it clear that the Starr principle is of general application, whether in courts or tribunals. So – as an example only – the first-tier tribunal should apply similar principles in special educational needs cases where a young person’s needs are in question and the authority or school wants to assess them.

Lord Dyson finished by deciding that, though a UT judge had the normal discretion as to case management issues, there was no reason in the current case for the judge to have decided that the steps which Croydon wanted Y to take could not be properly accommodated in the proceedings. 

So the outcome was that the unless order sought by Croydon was made.

Peter Oldham QC

 

 

 

Funding Obligations

February 8th, 2016 by James Goudie QC in Social Care

In Forge Care Homes Ltd v Cardiff & Vale University Health Board, Cardiff City Council and Others [2016] EWCA Civ 26 the Court of Appeal was concerned with the respective funding obligations of local authorities and NHS Local Health Boards with respect to the cost of the provision by registered nurses of nursing care to residents in care homes who require some nursing care, but for whom this is not a primary need.  At issue was the proper construction of Section 49 of the Health and Social Care Act 2001, which is applicable in Wales and England and prohibits local authorities from providing nursing care by a registered nurse.  The case arose in circumstances where the registered nurse recruited by the care home provided both nursing care, in the sense of medical and clinical care, and social care, in the sense of care of a kind which does not depend upon the skill and experience of a registered nurse and can be provided by non-specialist care workers.  The Court of Appeal ruled that a distinction required to be drawn between these two types of services, with the former being paid for by the NHS and the latter by the local authority.  Lord Justice Laws said that it does not follow from the fact that a nurse needs to be on call at all times that everything she or he does on duty has to be treated as a service which needs to be provided by a registered nurse.  What matters is the actual work being done.  The question is as to the various and changing factual circumstances and the extent to which the registered nurse’s activities and individual tasks in the care home need to be provided by a registered nurse.  Lloyd Jones LJ agreed.  Elias LJ dissented.  Therefore the NHS can lawfully set the rate they pay to care homes to reflect time spent, directly or indirectly, on nursing tasks that have to be carried out by a nurse, but excluding time spent on social care.  The latter has to be funded by the care homes or local authorities, or, subject to their means, the residents of the care homes.

 

Invitation To Tender

December 22nd, 2015 by James Goudie QC in Social Care

In Enfield LBC v Secretary of State for Transport [2015] EWHC 3758 (Admin) the Council’s challenge to a train franchise decision by the SoS pursuant to the Railways Act 1993 to issue an Invitation to Tender containing a particular Train Services Requirement failed before Elisabeth Laing J. 

In connection with a major development, the Council hoped for an improved train service. The Judge found that (1) the SoS had not by his contradictory and confusing messages generated the legitimate expectation sought to be relied upon, (2) even if a legitimate expectation had been created, (i) the Council had not relied upon it to its detriment, and (ii) there were overriding public interests to justify departing from it, (3) the SoS had not acted with conspicuous unfairness, (4) he had not failed to take into account relevant considerations, (5) he had not taken into account irrelevant considerations, (6) he had not acted irrationally, (7) he had not acted unfairly in not allowing the Council to make further representations, and (8) he had complied with the Public Services (Social Value) Act 2012.  The SoS’s discretion was a broad one, in a complex, technical, quasi-commercial field.