Details

17.Dec.2010

The Legal Services Commission breached the Public Contract Regulations 2006 during its tenders for public law and high security mental health hospitals work but will not have to re-run the exercise, a High Court judge has ruled.

Two law firms, Public Interest Lawyers and RMNJ, had brought the challenge, backed by ten other practices.

Mr Justice Cranston ruled that:

• The verification carried out by the LSC to check the quality standards of those firms awarded contracts was flawed. “In particular the process has not allowed the Legal Services Commission to verify that firms meet these criteria in relation to the employment of appropriate supervisors set out in the 2010 Standard Civil contract,” which offends against the principle of equal treatment under the 2006 Regulations
• It was appropriate – to ensure that unfairness caused to successful tenderers who do meet the relevant criteria is remedied – for the LSC to ensure that, within a limited period, all firms holding contracts in public law and mental health comply with the supervisions standards. “Those that found not to comply must have their contract removed. Any new matters starts need to be redistributed pro rata to those firms who do meet the verification requirements”
• There could be no challenge under the general disability equality duty to the process of awarding the contracts for legal advice for mental health patients in high security hospitals, but that duty was engaged because of the outcome of the process. The fact that many patients may need to switch advisers as a result of the tender may “have an adverse impact on those already vulnerable”. Under s. 49A of the Disability Discrimination Act 1995, the LSC must have due regard to whether they need to take steps to ameliorate that result of the contracting exercise
• There was no legal flaw in the way the LSC conducted the tender for the award of public law contracts – there was no breach of its duty under section 4 of the Access to Justice Act 1999. Those specialist public law firms that are no longer able to open the advice cases they did under the 2007 Standard Civil contract, are not precluded from undertaking under certificate publicly funded litigation “which they have done in the past, and which has been such a notable feature of the work of this court”.

A Legal Services Commission spokesman highlighted the fact that the challenges had failed to overturn any of the LSC’s tender decisions.  

He added: “The judge found that the LSC’s tender process did not breach the Disability Discrimination Act, and his judgment confirms that we met our legal obligations under the Access to Justice Act.  We are pleased that the uncertainty caused by this litigation has ended.   

“However, we accept the court’s criticism of the verification process for our supervisor standards in public law and mental health.  We are currently reviewing what additional verification needs to be undertaken as a result and will publish details on our website in due course.”

Saimo Chahal, partner at Bindmans, claimed the judicial reviews had highlighted “once again” the shortcomings in the LSC’s tender processes.

She said: “These two firms with 10 firms standing behind them had always made clear that they were concerned with the impact of the tendering processes on their vulnerable clients and that they were litigating in the public interest. This was accepted by the Court when it granted a protective costs order to the claimants – the first PCO involving law firms in this type of situation. The court observed that these firms were not motivated by commercial interests but were litigating on issues of significant public interest.

“I hope that the LSC will now see sense and agree the steps which have to be taken in order to rectify the flaws highlighted in the tendering processes. If the LSC does not agree to rectify the flaws, then we will be seeking appropriate orders on 21 December."

Details

15.Dec.2010

The Social Work Reform Board (SWRB) has published the first single, national set of professional standards for social workers, outlining what level of service the public can expect from them, and recommended an overhaul of social worker education and training.

The board, which was set up a year ago to advise the government on reforming the social work system, said that the proposals would bring the social work profession in line with other public sector professionals like doctors, nurses and teachers.

It said that the core themes of the overarching professional standards framework should be:

• Professionalism: identify and behave as a professional social worker, committed to professional development.
• Values and ethics: apply social work ethical principles and values to guide professional practice.
• Diversity: recognise diversity and apply anti-discriminatory and anti-oppressive principles in practice.
• Rights, justice and economic wellbeing: advance human rights, and promote social justice and economic well-being.
• Knowledge: apply knowledge of social sciences, law and social work practice theory.
• Critical reflection and analysis: apply critical reflection and analysis to inform and provide a rationale for professional decision-making.
• Intervention and skills: use judgement and authority to intervene with individuals, families and communities to promote independence, provide support and prevent harm, neglect and abuse.
• Contexts and organisations: engage with, inform, and adapt to changing contexts that shape practice. operate effectively within own organisational frameworks and contribute to the development of services and organisations. operate effectively within multi-agency and inter-professional settings.
• Professional leadership: take responsibility for the professional learning and development of others through supervision, mentoring, assessing, research, teaching, leadership and management.

The SWRB also recommended that social work education should also be reformed to improve the quality of social work degrees, with more rigorous selection criteria. It added that the design of social work courses should involve people who have experienced social services, so that the training properly reflects the real-life reality of the job.

The SWRB's report Building a Safe and Confident Future – One year On said that employers should be expected to set out standards of supervision and support for social workers, to include:

• making sure the right number of social workers with the right level of skills and experience are available to meet the level of demand
• managing workloads and caseloads so that social workers are not overworked
• giving social workers the practical resources they need to do their jobs
• creating development opportunities for social workers to give them greater experience and skills.

Moira Gibb, CBE, Chair of the Reform Board and Chief Executive of the London Borough of Camden, said:

“A year ago the Social Work Task Force recommended comprehensive reform of the social work system so that in the future, social workers are more consistently able to practise confidently and safely. Since then, the Social Work Reform Board has been working to make the task force's recommendations a reality.

“This report, the first from the Social Work Reform Board, marks a staging post in the journey of social work reform and a foundation for helping us, together, to deliver a better future for social work. The proposals published today should help every individual social worker, every employer of social workers and everyone who educates or trains social workers to do their work better in the interests of those who need and use social work.

“The government supports the work of the Social Work Reform Board and is urging the sector to get involved in the next steps towards implementing these important and necessary changes.”

Tim Loughton, Children’s Minister, said: “I welcome the Social Work Reform Board’s proposals, which are an important step for social workers to gain the status and respect they so rightly deserve. We are committed to making a real difference to frontline social work and to implementing the Social Work Reform Board’s recommendations. That is why in the new year we will be announcing significant funding to implement the reforms and Professor Munro’s recommendations to improve child protection.”

Details

01.Dec.2010

Victoria Butler-Cole and Alex Ruck Keene provide guidance on how local authorities and other statutory bodies should approach the preparation of care plans, transition plans and best interests assessments for Court of Protection proceedings.

This short paper is designed to assist local authorities and other statutory bodies applying to the Court of Protection with preparing evidence to support applications relating to health and welfare.

A common complaint from the Court, other parties or the Official Solicitor is that there is insufficient written information about what is proposed for P, why the proposed option is considered to be in P’s best interests, and the details of the care plan and transitional arrangements. Often, the relevant issues have in fact been considered by professionals working with P, but the written documentation such as care plans and witness statements does not reflect this adequately.

The checklists below list the sort of information and detail that is likely to be required to support an application to the Court and within proceedings. We hope they will serve as a useful guide to non-lawyers preparing evidence and documentation in best interests cases (whether or not there are court proceedings contemplated). They should not, however, simply be applied to every case since not every element will necessarily be relevant. Furthermore, because the checklists are the product of the experience of the 39 Essex St Court of Protection team we do not claim that they are exhaustive (and certainly do not serve as a substitute for following the reams of guidance issued by the government).

Checklist for Best Interests evidence

1. Clinical and social work information about P including diagnosis, prognosis, presentation, history. Although this information will be contained in the various records, it is helpful to have a summary of relevant details so that anyone unfamiliar with the case can have a picture painted of P and P’s care needs.
2. P’s wishes (including IMCA reports if available). P’s wishes must be taken into account in making a best interests decision and it is therefore important to make sure that a clear record of P’s wishes is kept, whether obtained directly from P, or through reports from third parties such as family members, paid carers, or advocates. This applies whether P expresses consistent or inconsistent wishes – in either case, the information about what P has said will need to be considered, although clearly in the former case it will likely be accorded more weight. Information should also be included about steps that have been taken to improve P’s understanding of the issues in dispute, and to assist P in expressing his or her wishes.
3. Views of family members. Careful recording of the views of family members is helpful, including family members who are not parties to proceedings. A record should also be kept of decisions taken as to why particular family members have not been consulted (if relevant).
4. Details of every option considered for P. It is critical to ‘show your working’. If the team working with P have decided that a particular option is in P’s best interests, it can be tempting only to explain in detail that preferred option. The other parties and the court need to know what all the possible options are, even if they include options that can immediately be discounted (for example, the option of doing nothing where P faces a serious risk to his or her wellbeing). Make sure that options proposed by family members are included in the list of possibilities, even though they may not be recommended by the professionals working with P.
5. Factors for and against each of the options under consideration. For every option, details of the benefits and risks or disadvantages to P must be set out (See footnote). It is often easiest to do this in table form, or using bullet points, so that the reader can easily see the issues and can compare the various options under consideration. Don’t forget to include practical implications for P as well as less tangible factors such as relationships with family members and care home staff.
6. The likelihood of the pros and cons of each option eventuating. Give some indication of whether the risks and benefits you have identified are likely to occur or not, and why you take this view.
7. The relative seriousness and/or importance of the pros and cons of each option. It may not always be obvious which benefits and disadvantages you place particular importance on and why. A common tension is between avoiding risk and promoting independence: explain why you have given more weight to one approach in the particular case.
8. Reasons for identifying a particular option as being in P’s best interests and for rejecting the other options. Although it may seem clear in light of the analysis of benefits and disadvantages, it is helpful to set out separately a conclusion about which option you consider to be in P’s best interests and why. This is particularly important where there is a dispute and where the option you prefer does entail significant disadvantages to P, such as a loss of independence, intrusion into a longstanding relationship, or inevitable distress caused by a change of environment.
9. If proposed option entails risks or disadvantages to P, reasons why these are thought to be outweighed and steps to be taken to minimise them. Having decided that certain risks are worth taking in P’s best interests, or that certain disadvantages are outweighed by benefits, it is important to show that you have considered what could be done to reduce these risks or disadvantages and set out detailed plans for dealing with them. This might include additional care or staff support for particular periods of time, or the provision of financial assistance to ensure that relationships can continue.
10. Detailed contingency plans if the proposed option is implemented. Where there is the prospect that a proposed option may fail in the short or medium term, there must be thought given to what will happen in those circumstances, to reassure the other parties and the court that hasty and off-the-cuff decisions will not suddenly be required, to the possible detriment of P.

Checklist for Care Plans

1. Take into account the guidance given by Munby J (as then was) in R(J) v Caerphilly County Borough Council [2005] 2 FLR 860: “46… A care plan is more than a statement of strategic objectives – though all too often even these are expressed in the most vacuous terms. A care plan is – or ought to be – a detailed operational plan. Just how detailed will depend upon the circumstances of the particular case. Sometimes a very high level of detail will be essential. But whatever the level of detail which the individual case may call for, any care plan worth its name ought to set out the operational objectives with sufficient detail – including detail of the 'how, who, what and when' – to enable the care plan itself to be used as a means of checking whether or not those objectives are being met.”
2. The assignation of specific responsibilities to individuals is particularly important in the CoP context.
3. Take into account the factors set out in checklist A above wherever the care plan involves the making of decisions for or on behalf of P.
4. Ensure, where appropriate, that consideration is given to the person-centred planning approach in the previous government’s Valuing People guidance.
5. Where the care plan involves any degree of restraint, identify the precise nature of the restraint, the rationale for it, plans to minimise the need for restraint (and contingency plans in case the need for restraint is escalated). If, in the consideration of the need for restraint, it emerges that the requirement goes beyond restraint into a deprivation of the person’s liberty then authorisation will be required for that deprivation (how this will be achieved will depend on the setting, and whether the DOLS procedures apply).
6. Be realistic. There is nothing that the OS/Court of Protection likes less than to see a care plan founded upon optimism alone: if this means that it is necessary to set a series of apparently limited objectives on the way to a more distant goal, then so be it.

Checklist for Transition Plans

1. Details of P’s current and proposed care, including full care plans for each setting.
2. Step-by-step account of how P will be moved from A to B including: Timing; Personnel involved; Who will take responsibility for the transition on the day and subsequently; What will happen from P’s perspective (eg. moving possessions, arrangements for meals on the day etc); Whether police will be present and if so, details of their involvement (note that unless physical force and/or restraint and/or sedation are essential, it is best to plan on the basis that they will not need to be authorised by the court, and then to return to court in the event the transition does not work and further steps are required); and Monitoring in days/weeks immediately following move.
3. Where police will be involved in the removal, ensure that the transition plan includes information sufficient to satisfy the guidance given by Coleridge J in Re MP; LBH v GP [2009] FD08P01058:

“In the event that it is expected that the assistance of the Police may be required to effect or assist with the removal of a vulnerable/ incapacitated adult (“P”) which the Court is being asked to authorise, the following steps should generally be taken:

(1) the Local Authority/NHS body/other organisation/person (the Applicant) applying to  the Court for an authorisation to remove P should, in advance of the hearing of the Application, discuss and, where possible, agree with the Police the way in which it is intended that the removal will be effected, to include, where applicable, the extent to which it is expected that restraint and/or force may be used and the nature of any restraint (for example, handcuffs) that may be used;

(2) the Applicant should ensure that information about the way in which it is intended that removal will be effected is provided to the Court and to the litigation friend (in cases where a person has been invited and/or appointed to act as P’s litigation friend) before the Court authorises removal. In particular, the Court and the litigation friend should be informed whether there is agreement between the Applicant and the Police and, if there is not, about the nature and extent of any disagreement;

(3) where the Applicant and the Police do not agree about how removal should be effected, the Court should give consideration to inviting/directing the Police to attend the hearing of the Application so that the Court can, where appropriate, determine how it considers removal should be effected and/or ensure that any authorisation for removal is given on a fully informed basis.”

Victoria Butler-Cole and Alex Ruck Keene are barristers at 39 Essex Street. They can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it. and This email address is being protected from spambots. You need JavaScript enabled to view it. respectively.

The article was the subject of very helpful comments from Beverley Taylor at the Official Solicitor’s office, although it should not be read as a document with the official imprimatur of that Office.

Footnote

1.                  Following the well-established ‘balance sheet’ approach identified by Thorpe LJ in Re A [2000] 1 FLR 549 at 560: “There can be no doubt in my mind that the evaluation of best interests is akin to a welfare appraisal. … Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit. In the present case the instance would be the acquisition of foolproof contraception. Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant. An obvious instance in this case would be the apprehension, the risk and the discomfort inherent in the operation. Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously, only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant.” Whilst this pre-dates the coming into force of the Mental Capacity Act, the Courts have continued to adopt the approach.

Details

17.Nov.2010

The City and County of Swansea has drawn up plans to outsource its adult social services department, with hopes that a 'social enterprise' will take over services.

It has published a document to gauge interest in among firms in running all these services from April 2012.

Liberal Democrat cabinet member for social services Nick Tregoning said he hoped the service would be taken on by a social enterprise but the Labour opposition has attacked the idea as being privatisation.

Cllr Tregoning told BBC Wales that saving money was a factor but not “the main driving factor” in developing the proposals.

“We're interested in pursing a social enterprise model which will benefit the staff, benefit the clients and, yes, will provide better value for money,” he said.

“As part of that, we are obliged under EU rules to ensure that we have carried out due diligence and looked at every possible aspect of this. We're not the only authority that's going down this route.”

A business case is expected to go to the cabinet in the New Year.

Details

16.Nov.2010

Legal aid for many cases concerning local authorities is set to be maintained, despite swingeing cuts in provision in most other areas of civil litigation, the Ministry of Justice (MoJ) has announced.

The MoJ said that legal aid will still routinely be available in civil and family cases where people’s life or liberty is at stake, or where they are at risk of serious physical harm, or immediate loss of their home.  This will include asylum cases and housing matters where a person's home is at immediate risk, and mental health cases as well as child protection cases and judicial review claims. Criminal cases will also continue to qualify for legal aid.

It said: “Legal Aid will still be provided where people face intervention from the state in their family affairs which may result in their children being taken into care, and cases involving domestic violence or forced marriage.  It is also proposed to retain legal aid for cases where people seek to hold the state to account by judicial review, for some cases involving discrimination which are currently in scope, and for legal assistance to bereaved families in inquests, including deaths of active service personnel.”

However, even in areas which have escaped the axe, applicants will subject to more rigorous means-testing before being awarded legal aid, including those on benefits.  Greater account will also be taken in future of equity in people’s homes when assessing their capital means and a minimum £100 contribution to legal costs will be introduced for all successful applicants with £1,000 or more disposable capital, with higher contributions expected from those who currently contribute to their legal fees.

Legal aid will no longer be available for most cases involving education, employment law, immigration, welfare benefits and housing, except where there is a risk to anyone’s safety or liberty or a risk of homelessness housing. It will also be abolished for clinical negligence claims, where the government said that 'no win, no fee' funding was already available.

The main provisions of the proposed reforms as they are likely to affect local authorities are as follows:

Claims against public authorities

• The MoJ said that legal aid for most public law challenges is justified on the basis that they enable individual citizens to check the exercise of executive power by appeal to the judiciary, often on issues of the highest importance. Legal aid will be retained for all but business cases (which already do not qualify for legal aid).
• The MoJ said that it intends to recalibrate the eligibility of claims against public authorities to ensure that only those alleging “serious wrong-doing” by public bodies will qualify. The proposals address the effect of the ruling of R(G) v Legal Services Commission [2004] EWHC 276 which rejected the notion that ‘serious wrong-doing’ required an element of deliberate, malicious or dishonest conduct and held that a negligent omission could suffice if the authority’s duty of care had been sufficiently important. This will mean that only case which involve an ‘abuse of position of power’ and/or ‘significant breach of human rights’ will qualify, as will cases arising from from “negligent acts or omissions falling very far below the required standard of care”.
• Public interest cases will lose their automatic funding entitlement, but will be considered for legal aid on a case-by-case basis on the Funding Code merits criteria.
• Actions concerning personal data, such as actions relating to inaccurate or lost data or rectification of personal data will no longer qualify for legal aid.
• Tort and other general claims, such as those for breach of statutory duty or malicious prosecution, will no longer qualify for legal aid.
• Legal aid will be retained for all unlawful discrimination claims currently within scope, regardless of the category in which they arise. However, routine legal aid funding will not be extended to discrimination cases which are currently out of scope, such as discrimination proceedings before the Employment Tribunal or the Special Educational Needs and Disability Tribunal (although Legal Help for these claims would remain within scope).

Social care and welfare

• Funding of legal advice to obtain or challenge an assessment for adequate services, challenging care home closures or contesting involuntary removal from a home by a local authority will remain available.
• Legal aid for cases under the Children's Act 1989 will be retained.
• Legal actions such as non-molestation orders or occupation orders involving domestic violence or forced marriage will continue to qualify for legal aid. This will applications under the inherent jurisdiction of the High Court for wardship orders relating to a 16 or 17 year old who has been abducted abroad for the purposes of forced marriage.
• Legal aid will be retained for mental health and capacity detention cases, including appeals to the First-tier (Mental Health) Tribunal, and onward appeals to the Upper Tribunal, and appeals to the Court of Protection on deprivation of liberty issues. However, it will no longer be available for tort or other general damages claims except where the claims are of a very serious nature.
• Legal aid for benefit appeals will no longer be available, including appeals against housing benefit decisions although legal aid will remain available in repossession proceedings.
• Claims arising against public authorities from allegations of abuse and sexual assault will continue to attract legal aid where they arise out of allegations of the abuse of a child or vulnerable adult or they arise out of allegations of sexual assault. This, the MoJ says, will provide legal aid for cases concerning, allegations of abuse in local authority care, or in private educational or care institutions.
• Immigration appeals will no longer qualify, except where material issues of discrimination can be shown, but legal aid will remain for most asylum applications and  appeals before the First-tier and Upper Tribunal (Immigration and Asylum Chamber), and advice on appealing to higher courts. However, as part of plans to to remove all welfare-related issues from the scope of legal aid, applications for asylum support under sections 4 and 95 of the Immigration and Asylum Act 1999 will no longer qualify for legal aid.

Housing and debt

Legal aid will generally be withdrawn for housing law actions, with the following exceptions:

• Repossession cases, including actions for possession due to rent, service charge, or mortgage arrears, adverse possession and similar matters arising out of tenancy agreements.
• Damages claims for disrepair brought as a counterclaim in rent arrears possession cases. These cases could be considered a defence to a possession order, where the litigant or their family may be at immediate risk of being made homeless.
• Appeals to the county court on points of law under section 204 of the Housing Act 1996 which relate to the obligations of local authorities to those who are homeless or threatened with the risk of homelessness.
• Actions under the Mobile Homes Act 1983 where the site owner is seeking eviction.
• Serious housing disrepair cases where the litigant is not primarily seeking damages, but is seeking a repair of such significance that without it the life or health of the litigant or their family may be at serious risk (such as the repair of gas equipment).
• For the challenge of ASBOs brought alongside possession proceedings on the basis of a nuisance. (For other ASBOs, heard in the magistrates’ court, legal aid will continue to be available under the Criminal Defence Service).
• Civil legal aid will continue to be available for injunctions concerning anti-social behaviour.

This means that the following legal actions will no longer qualify for legal aid:

• Actions to enforce a Right to Buy.
• Actions to enforce a Right to Buy a freehold or extend the lease.
• Actions to set aside a legal charge (for example, a mortgage) or the transfer of a property.
• Actions for damages and/or an injunction for unauthorised change of use of premises.
• Actions under the Housing Grants, Construction and Regeneration Act 1996.
• Applications for a new tenancy under the Landlord and Tenant Act 1954.
• Actions for re-housing.
• Actions under the Access to Neighbouring Land Act 1992.
• Actions for wrongful breach of quiet enjoyment;
• Housing disrepair proceedings where the primary remedy sought is damages, including damages for personal injury;
• Actions for trespass; or
• Actions under the Mobile Homes Act 1983 which does not concern eviction

Community safety and enforcement

• Legal aid will continue to be available for the subjects of anti-social behaviour order applications.
• Funding for confiscation proceedings under the Proceeds of Crime Act will continue. However, legal aid for cash forfeiture proceedings in the magistrates’ courts and the Crown Court will no longer be available.
• Injunctions under section 34 of the Policing and Crime Act 2009 to prevent or protect individuals from gang-related violence will continue to qualify for legal aid.
• Legal aid will be retained for Independent Safeguarding Authority Appeals (Care Standards), to both the First-tier Tribunal and the Upper Tribunal.
• Quasi-criminal proceedings – defined as any proceedings considered to be criminal under the ECHR - will continue to be eligible for legal aid.
• Contractual claims will no longer be eligible for legal aid, with voluntary bodies or Trading Standards expected to take up the slack for consumers.
• The defence of debt issues (including council tax arrears) will no longer qualify for legal aid, except where homelessness may result.

Courts and tribunals

• Legal aid will not be available for most tribunal hearings, other than on those areas specifically excepted.
• Appeals to the Court of Appeal, the Supreme Court or the European Court of Justice will no longer automatically qualify for legal aid, other than on those areas specifically excepted.

Education

• All education-related appeals will no longer qualify for legal aid. This will include applications to the special needs tribunal.

Employment

• All legal aid for employment tribunal cases will be withdrawn.

The MoJ also said that fees paid in civil and family cases will be reduced by 10% across the board and the use of 'risk rates' for in civil cases where costs are likely to be paid by the opponent, is to be extended.

At the same, the MoJ announced its backing for the reforms of the civil costs regime recommended by Lord Justice Jackson at the beginning of the year. These included ending the recoverability of 'no win, no fee' uplifts and associated insurance premiums in return for a 10% uplift for successful claimant solicitors and a general rise in the value of damages paid.

The Justice Minister Jonathan Djanogly said: “These are difficult issues which have been grappled with for some time, as all who are familiar with this area of law know. But I believe that today’s consultation marks the way forward. One of our key proposals is reforming the current “no win no fee” regime. We want to reduce overall costs, ensure claimants have a financial interest in controlling legal costs incurred on their behalf and deter avoidable, unnecessary or unmeritorious cases.

“Under the current arrangements claimants generally have no interest in the costs being incurred on their behalf because, win or lose, as they do not have to pay anything towards them. Today’s proposals are designed to prevent the situation in which, regardless of the merits of their case, defendants are forced to settle for fear of prohibitive costs. I want to strike the right balance between access to civil justice and ensuring that costs are proportionate, sustainable and affordable.”  

The reforms to legal aid and the civil litigation funding regime are set out in two consultation papers which are available here:

http://www.justice.gov.uk/consultations/legal-aid-reform-151110.htm

http://www.justice.gov.uk/consultations/jackson-review-151110.htm

The consultation period for both ends on 14th February, 2011.

If adopted in full, the proposals are expected to achieve savings of around £350 million by 2014-15. The Ministry of Justice is required to reduce its overall spend by £2 billion by 2014-2015.

Details

10.Nov.2010

A recent Court of Appeal decision suggests it is primarily for local authorities – and ultimately those who elect them – to decide on what levels of care they should provide to their residents, writes Matthew Hill.

In R (McDonald) v Royal Borough of Kensington and Chelsea [2010] EWCA Civ 1109, the Court of Appeal has held that a local authority was entitled to reduce the care package provided to one of its residents following a re-assessment of her needs, even though this had the effect of forcing her, against her wishes, to use incontinence pads and/or absorbent sheets at night.

In doing so, the authority did not breach Article 8 ECHR (right to privacy and family life), or the relevant disability discrimination legislation. The judgment suggests that the courts will only intervene in disputes about the level of care being provided by local authorities in limited circumstances, something that may be significant in an environment of public spending cuts.

The claimant, M, had a medical condition that caused her to urinate three times during the night. Following a stroke she suffered from reduce mobility such that she could only safely use a commode with the assistance of a carer. In July 2008 the Defendant local authority, K&C, undertook a Needs Assessment in line with its statutory duties. This assessed the need for “assistance to use the commode at night” as a core need for safety, and allocated a sum to pay for a night-time carer for ten hours a night, seven nights per week.

In October 2008, K&C purported to withdraw this support on the basis that M’s needs could be met by providing her with incontinence pads and/or absorbent sheets (which I will refer to jointly as “pads”). M immediately challenged this decision on the grounds set out below. As a result of the challenge, K&C put in place an interim arrangement whereby it provided a carer for four nights per week (M’s partner assisting on the other nights). In November 2009 and spring 2010, while the proceedings were continuing, K&C carried out Care Plan Reviews, which concluded (among other things) that M’s night-time toileting needs could be met by the provision of pads. It was estimated that the additional cost of a night-time carer was £22,000 per year.

M had a horror of using the pads, and wished to continue using a commode. She also objected to being classified, inaccurately, as “incontinent”. She sought judicial review of K&C’s decision, arguing at first instance that the authority was unlawfully failing to meet her assessed needs, and that in doing so it was also violating her Article 8 rights. Her claim was dismissed, and then renewed before the Court of Appeal where she also argued that K&C was in breach of the ss. 21B, 21D and 21E of the Disability Discrimination Act 1995 (DDA 1995).

In respect of the statutory duty, Rix LJ (giving the only reasoned judgment of the court, which was agreed by Wilson LJ and Sir David Keene), described K&C’s statutory duty to M in the following terms:

• “[32] Thus these Acts [s.47 National Health Service and Community Care Act 1990, s.29 National Assistance Act 1948, s.2(1)(a) Chronically Sick and Disabled Persons Act 1970] require a local authority to assess needs, then to decide by reference to such an assessment whether the provision of relevant services are called for, and then to make arrangements for the provision of the services which have been decided upon as being called for.
• [34] Relevant jurisprudence has determined the extent to which a local authority is entitled in the assessment of needs and the provision of services to meet such needs to have regard to resources. It is entitled to have regard to them in assessing needs (R v. Gloucestershire County Council ex parte Barry [1997] AC 584) and in choosing between different means of meeting the assessed need [R v Kirklees Metropolitan Borough Council ex parte Daykin [1998] 1 CCLR 512]. Subject to that, however, a need, once assessed, has to be met by the provision of services.”

In respect of M’s case, the last sentence of paragraph 34 was of critical importance. In July 2008 she had been assessed – in terms – as requiring assistance to use a commode at night. K&C argued, successfully at first instance, that the local authority and a court could look beyond the actual words used in the assessment in order to identify its underlying rationale, which was taken to be a need to urinate safely at night. If this need could be met by other, cheaper means (such as using pads), it was argued that K&C were entitled to do so. It was submitted on M’s behalf that this was not so: once a need had been assessed, a local authority had a statutory duty to meet it, and the question of resources could only be relevant to the means used. As pads did not constitute assistance in using a commode, K&C’s proposal was not lawful.

Finding for M on this point, Rix LJ expressed sympathy with K&C’s argument that the “true need was the underlying one of safety in managing [M’s] night-time toileting.” However: “[Counsel for K&C] accepts that that language of the July 2008 needs assessment was deliberately chosen, and was not the result of any error. On that basis, it contrasts strongly in its specific form with the more general formulation of Ms McDonald’s need to be found in earlier (and later) documents. If an assessed need is precisely formulated in terms of a “TV set”, it seems to me that it would not be in order for that need to be met with the supply of a radio on the basis that the real need was communication and/or entertainment. It is for the authority, carrying out the detailed guidance [issued by the Department of Health under s. 7(1) Local Authority Social Services Act 1970], rather than the court, to formulate the assessed need.”

It followed that K&C was in breach of its statutory duty in not providing a carer every night in the period during which M was assessed as requiring assistance with using a commode.

However, M’s victory was a narrow one. The Court also found that the reviews of November 2009 and spring 2010, in which it had been stated that M’s needs could be met with pads, were lawful re-assessments of her care requirements. As these did not state that she needed assistance with using a commode (and in fact considered this the less preferable option on the grounds of safety), K&C was entitled to withdraw that support and replace it with the provision of pads. Hence K&C had acted unlawfully only in respect of the three nights per week between October 2008 and November 2009 in which it had not provided a night time carer.

In respect of Article 8, the Court rejected M’s arguments that requiring her to use pads was a breach of her right to respect for her private and family life. Citing the case of Sentges v The Netherlands (Application No 27677/02) [6], where the issues was whether an applicant with muscular dystrophy should have been supplied with a robotic arm, the Court noted that a failure by a state body to provide support in such situations would only breach Article 8 in “exceptional cases”. A fair balance had to be struck between the needs of the community and the needs of the individual, and the margin of appreciation left to states when allocating priorities in the context of limited resources was wide.

The Court also referred to Anufrijeva v Southwark LBC [2003] EWCA Civ 1406 [43], in which it was held that it was: “hard to conceive … of a situation in which the predicament of an individual [as opposed to a family unit containing young children] will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3 ECHR [the right to protection against cruel, inhuman and degrading punishment].”

In M’s case, where it was not argued that M’s suffering amounted to a breach of Article 3, Rix LJ held that the conditions for finding a breach of Article 8 were not established.

The Court also dismissed M’s claim under the DDA on the basis of proportionality: “there can be no breach of duty where a particular decision can be justified under section 21D [DDA 1995], or where it would not be reasonable in all the circumstances to require an authority to change its policy or practice. Ultimately, the question becomes whether a policy or practice is proportionate. Where, as here, the decision – and for these purposes it is only necessary to consider the ultimate reassessment in 2009 and 2010 – was only taken after great pains had been expended in trying to find the correct solution for Ms McDonald, applying [the Department of Health guidance] and taking into account not only the question of resources but also her safety, independence and privacy, it seems to me to be impossible to conclude other than that any policy or practice was justified as a proportionate means of achieving a legitimate aim, namely the equitable allocation of limited care resources. In this connection, it has to be remembered that the cost of night-time care for Ms McDonald would be an ongoing liability in the amount of £22,000 a year, a figure which in theory would have to be available for all other clients in Ms McDonald’s situation.”

What conclusions can be drawn from this difficult case? First, the actual terms in which an individual’s needs are assessed are highly significant. If an assessment states a specific item should be provided, then the local authority are lawfully obliged to provide it. This allows some protection for an individual from the arbitrary withdrawal or redrawing of the assistance that he receives; it also provides notice to local authorities to take care in drafting their assessments.

Second, and qualifying the first point significantly, there is nothing to prevent a local authority from re-assessing a resident’s needs as long as this is done properly (and is not simply a sham designed to save money). In any such re-assessment a local authority would be entitled to have regard to its resources (among other relevant considerations). It is notable that throughout his judgment in M’s case, Rix LJ expressly praised K&C for its approach, which he considered to be borne out of “a genuine attempt to assist” M, while performing “the difficult task of balancing [this] desire … with its responsibilities to all it clients within the limited resources available to it in its budget”.

Finally, the Court’s attitude to the Article 8 and DDA arguments indicates that it would intervene on these grounds only in the most extreme cases. For an individual to succeed in an Article 8 argument, it is likely that he would need to establish that he had suffered treatment approaching a violation of his Article 3 rights as a consequences of the failure to provide care. This is a very high threshold, although it seems that a different, lower, test applies where family units are concerned.

The theme running through each of these points is that it is primarily for the local authorities – and ultimately those who elect them – to decide on what levels of care they should provide to their residents. The Courts’ role is limited to ensuring that the authorities correctly address their statutory responsibilities, and to providing a “safety net” via Article 8 to catch those whose suffer so much as a result of a lack of care that it amounts to a breach of their fundamental rights. A dramatic and distressing example of the latter is provided by the case of R (Bernard) v Enfield LBC [2002] EWHC 2282 (Admin), in which Sullivan J found that Article 8 was breached when a council’s failure to take steps to resolve a family’s accommodation situation left the wife, a paralysed wheel-chair user, confined to a living room where she was forced to defecate and urinate on the floor.

For M, the Court had sympathy but ultimately no remedy. In light of this judgment and the current economic climate, future campaigning on similar cases is likely to take place predominantly in the political rather than the legal sphere.

Matthew Hill is a barrister at 1 Crown Office Row (www.1cor.com). This article first appeared on the chambers’ UK Human Rights Blog.