In R (Forsey) v Northern Derbyshire Magistrates’ Court (2017) EWHC 1152 (QB) the claimant was prosecuted as a director of a company which entered into administration, and whose 84 employees at a warehouse were made redundant. It was alleged that the company committed an offence by failing to notify the Secretary of State for Business, Innovation and Skills (“the SoS”) in writing of a proposal to dismiss and make redundant 20 or more employees. The claimant is said also to be guilty on the basis that he had consented to, connived at, or neglected to prevent this failure. The failure was alleged to be contrary to Section 194 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the Act”). Read more »

The three appeals to the Employment Appeal Tribunal in cases including Focus Care Agency Ltd v Roberts, UKEAT/0143/16/DM, consider the proper approach to the question whether employees who “sleep-in” in order to carry out duties if required engage in “time-work” for the full duration of the night shift, or whether they are entitled to the National Minimum Wage, under the National Minimum Wage Act 1998 and the National Minimum Wage Regulations 1999 and 2015, only when they are awake and carrying out relevant duties. Read more »

On 27 April 2017 the Children and Social Work Act 2017 received the Royal Assent. It makes provision about looked-after children, makes other provision in relation to the protection and welfare of children, and (Part 2) makes provision for a specialist new regulatory regime for social workers in England. The 2017 Act provides the legislative framework to support a programme of reform in children’s social care set out in the Government’s July 2016 Policy Paper “Putting Children First”, and responds to reviews of social work education.

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 »

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 »

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.

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.”