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02.Sep.2011

Communities Secretary Eric Pickles has published guidance setting out the government’s “reasonable expectations” of the way local authorities should work with voluntary and community groups and small businesses when facing difficult funding decisions.

The document, Best Value Statutory Guidance, sets out how authorities can achieve Best Value in their areas – “not just in terms of cost for local taxpayers, but also the wider social and environmental benefits above and beyond the services they provide”.

It says authorities “should seek to avoid passing on disproportionate reductions – by not passing on larger reductions to the voluntary and community sector and small businesses as a whole, than they take on themselves”.

In particular:

• “An authority intending to reduce or end funding (where ‘funding’ means both grant funding and any fixed term contract) or other support to a voluntary and community organisation or small business should give at least three months' notice of the actual reduction – where on the basis of past practice the organisation might have some basis for expecting the funding or contract to be continued – to both the organisation involved and the public/service users.
• An authority should actively engage the organisation and service users as early as possible before making a decision on: the future of the service; any knock- on effect on assets used to provide this service; and the wider impact on the local community.
• Authorities should make provision for the organisation, service users, and wider community to put forward options on how to reshape the service or project. Local authorities should assist this by making available all appropriate information, in line with the government's transparency agenda.”

The government insisted that the guidance allowed authorities “the flexibility to exercise appropriate discretion in considering the circumstances of individual cases, without Government trying to predict every possible variable”. Central government departments are reported to have already signed up to the same principles.

Best Value Statutory Guidance applies to all best value authorities, which include councils and a range of other public bodies such as the police, fire authorities, the Broads Authority, waste and transport authorities. It does not replace local compacts between local authorities and the voluntary and community sector.

The statutory guidance on local priorities, which was introduced by the previous government and ran to 56 pages, has been scrapped.

Pickles said: "Community and voluntary groups provide vital and valuable services to our communities, often aimed at some of the most vulnerable in our society. They deserve a fair deal.

"That's why I'm introducing new guidance on councils to consider how they fulfil the Best Value Duty for their communities, not just in stark money terms but also in terms of the wider benefits to residents above and beyond the services that these organisations provide. And in return, I'm cutting reams of red tape that in the past have hampered council efforts to get their important work done.”

The new guidance clarifies that there is no requirement for local authorities to undertake lifestyle or diversity questionnaires of their residents or their suppliers.

The Department for Communities and Local Government said the surveys often asked personal questions about religious beliefs, sexual orientation and ethnicity, often duplicating information already collected in the Census.

The Communities Secretary said: "At a time when taxpayers are watching their pennies, the last thing councils should be doing is sending out unnecessary and intrusive questionnaires.

"Local residents shouldn't be asked to reveal detailed personal information just because they've enquired about getting their bins emptied or how to join their local library.”

Philip Hoult

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02.Sep.2011

The number of legal challenges to local authorities’ social care policies soared by 45% in 2010/11, research by Community Care has revealed.

Its survey of 89 councils found that they had received 425 letters before action over decisions in relation to children’s or adults’ social care last year, up from 293 in 2009/10.

The research also revealed that the success rate had risen from 26% to 30%.

Sarah Pickup, vice-president of the Association of Directors of Adult Social Services, told Community Care that the relatively small change to the success rate demonstrated that authorities were making decisions properly against a difficult backdrop.

She added: "The increase in challenges will put a strain on councils' resources but it's not surprising given the budget reductions that we are having to make. Most [savings] are being made through reconfiguration, not cuts, but still some people will be unhappy."

See also: Claimants win High Court challenge over Birmingham adult care cuts

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01.Sep.2011

The High Court has delivered an important ruling on the capacity of an individual to make decisions about residence, care and treatment as well as the role of the jointly instructed expert. Alex Ruck Keene and Victoria Butler-Cole review the case.

In PH v A Local Authority and Z Limited and R [2011] EWHC 1704 (Fam) the Court was asked to decide whether a man suffering from Huntingdon’s Disease (‘HD’) had the capacity to make decisions about his residence, care and treatment. The matter came before the Court by way of an application under s.21A MCA 2005 seeking a termination of a standard authorisation made by the local authority permitting Z Limited to keep PH at a care home.

The application challenged the conclusion of the local authority (as supervising body) that PH met two of the qualifying requirements for a standard authorisation, namely the capacity requirement and the best interests requirement. PH (acting by his litigation friend, the Official Solicitor) further challenged the purposes and conditions of the standard authorisation.

It was agreed that the question of capacity would be determined as a preliminary issue. A jointly-instructed consultant neuro-psychiatrist (well respected as an expert in HD) concluded that PH had the capacity to decide the question of residence.

This view was accepted by the Official Solicitor and shared by P’s former partner, R, with whom he had continued to live until he was placed at the care home, and to whom PH wished to return.

However, the view was contrary to the conclusions of the medical professionals treating PH, and both the local authority and Z Limited sought to challenge the conclusions of the expert.

Following a two-day hearing in which he heard evidence from the treating professionals, PH’s social worker and R, Baker J concluded that PH lacked the relevant capacity. Before assessing the evidence, Baker J set out in his judgment (at paragraph 16) a summary of the principles to be adopted by a Court assessing capacity which are of sufficiently general application to all those required to assess capacity that they merit setting out in full:

“16. When addressing questions of capacity, the Court must apply the following principles.

i) A person must be assumed to have capacity unless it is established that he lacks capacity: section 1(2). The burden of proof therefore lies on the party asserting that P does not have capacity.

ii) The standard of proof is the balance of probabilities: section 2(4).

iii) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success: section 1(3). As paragraph 4.46 of the Mental Capacity Act 2005 Code of Practice makes clear, “it is important to assess people when they are in the best state to make the decision, if possible”.

iv) A person is not to be treated as unable to make a decision merely because he makes an unwise decision: section 1(4).

v) A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain: section 2(1). This first question is sometimes called the “diagnostic test”.

vi) For the purposes of section 2, a person is unable to make a decision for himself if he is unable to (a) to understand the information relevant to the decision; (b) to retain that information; (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision whether by talking, using sign language or any other means: section 3(1). These four factors comprise the second question which is sometimes called the “functional test”.

vii) The Code of Practice gives guidance as to the meaning of the four factors in the functional test. Thus, so far as the first factor is concerned - understanding information about the decision to be made – paragraph 4.16 provides: “It is important not to assess someone’s understanding before they have been given relevant information about a decision. Every effort must be made to provide information in a way that is most appropriate to help the person understand”.

viii) The Code also gives guidance concerning the third of the four factors – using or weighing information as part of the decision-making process. Paragraph 4.21 provides “for someone to have capacity, they must have the ability to weigh up information and use it to arrive at a decision. Sometimes people can understand information, but an impairment or a disturbance stops them using it. In other cases, the impairment or disturbance leads to a person making a specific decision without understanding or using the information they have been given.”

ix) Further helpful guidance as to the interpretation of the functional test is given by Macur J in LBL v RYJ [2010] EWHC 2664 (Fam). At paragraph 24 of the judgment, the learned judge said: “I read section 3 to convey, amongst other detail, that it is envisaged that it may be necessary to use a variety of means to communicate relevant information, that it is not always necessary for a person to comprehend all peripheral detail and that it is recognised that different individuals may give different weight to different factors.”

x) Later, at paragraph 58 of the judgment, the learned judge indicated that she agreed with the interpretation of the section 3 test advanced by the expert in that case (which, coincidentally, was Dr Rickards) namely that it is “to the effect that the person under review must comprehend and weigh the salient details relevant to the decision to be made”.

xi) In Sheffield City Council v E [2004] EWHC 2808 (Fam) (a case concerning the capacity to marry decided before the implementation of the 2005 Act) Munby J (as he then was) said (at paragraph 144): “We must be careful not to set the test of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled”.

Although that observation concerned the capacity to marry, I agree with the submission made by Miss Morris on behalf of the Official Solicitor in this case that it should be applied to other questions of capacity. In other words, courts must guard against imposing too high a test of capacity to decide issues such as residence because to do so would run the risk of discriminating against persons suffering from a mental disability. In my judgement, the carefully-drafted detailed provisions of the 2005 Act and the Code of Practice are consistent with this approach.

xii) The 2005 Act generally, and the DOLS in particular, are compliant with Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms – see my earlier decision in G v E [2010] EWHC 621 upheld by the Court of Appeal at [2010] EWCA Civ 822 and in particular paragraphs 24-25 and 57 of the judgment of Sir Nicholas Wall P in the Court of Appeal.

Just as there is no justification for imposing any threshold conditions before a best interests assessment under the DOLS can be carried out (the point taken up unsuccessfully by the appellants in G v E) so in my judgment there is no reason for adopting the approach advocated by Miss Morris on behalf of the Official Solicitor in this case, namely that a finding of a lack of capacity should only be made where the quality of the evidence in support of such a finding is “compelling”. Equally, it is unnecessary for the court to adopt an approach, also advanced by Miss Morris on behalf of the Official Solicitor, that the statutory test should be construed “narrowly”. The statutory scheme is, as I have already observed, carefully crafted. I agree with the submission made on behalf of Z Limited (in written submissions by Mr Vikram Sachdeva who did not appear at the hearing) that the question of incapacity must be construed in accordance with the statutory test – “no more and no less”.

xiii) In assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in many cases the evidence of other clinicians and professionals who have experience of treating and working with P will be just as important and in some cases more important. In assessing that evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians treating, and the key professionals working with, P. In Oldham MBC v GW and PW [2007] EWHC136 (Fam) [2007] 2 FLR 597, a case brought under Part IV of the Children Act 1989, Ryder J referred to a “child protection imperative”, meaning “the need to protect a vulnerable child” that for perfectly understandable reasons may lead to a lack of objectivity on the part of a treating clinician or other professional involved in caring for the child. Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. Having identified that hypothetical risk, however, I add that I have seen no evidence of any lack of objectivity on the part of the treating clinicians and social worker who gave evidence in this case.

In concluding that he preferred the evidence of the treating medical professionals and the social worker, Baker J was “struck by the fact that [the] report [of the jointly instructed expert], and the answers to the supplementary questions posed by the other parties, seemed somewhat superficial. This may have been a reflection of the fact that he was basing his opinion on a single interview of ninety minutes. It would be an over-simplification to describe it as a snapshot but it is, to my mind, a disadvantage that the assessment was based on a single visit” (paragraph 56).

Comment

This judgment is of some considerable importance for the following reasons:

1. endorsing the conclusion of Macur J in LBL v RYJ [2010] EWHC 2664 (Fam) that attention must be given to whether the person must comprehend the salient details relevant to the decision to be taken (i.e. not every detail);
2. emphasising that courts must guard against imposing too high a test of capacity to decide issues such as residence because to do so would run the risk of discriminating against persons suffering from a mental disability;
3. for its careful analysis of the relevant weight to be placed upon the evidence of a jointly instructed expert versus treating professionals (including the dangers of a lack of objectivity on the part of the latter);
4. as an example of the practical difficulties that can be caused by the fact that it is likely in many cases that the jointly instructed expert will only have the opportunity to make one visit and undertake one interview with P, and will, inevitably, only be able to give a snapshot.

Alex Ruck Keene and Victoria Butler-Cole are barristers at 39 Essex Street.

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30.Aug.2011

Four local authority areas are to trial social impact bonds, ministers have announced.

The monies raised by the bonds will be used to fund intensive interventions for families with multiple problems. If families are taken out of deprivation and long-term dependence on the state, the government will repay the investment with a “decent” return. If not, the government will not pay.

The trials will take place in Hammersmith & Fulham, Westminster, Birmingham and Leicestershire. Ministers said up to £40m could be raised for the projects.

According to the Cabinet Office, the public services bill for the 46,000 most deprived families is more than £4bn a year, or almost £100,000 per family.

The government added that Big Society Capital – previously known as the Big Society Bank – would have around £600m to invest in social finance products such as social impact bonds.

Ministers said they hoped that philanthropists and investors would be attracted by the scheme, and that in time social ISAs and pension funds would be available to “everyday savers”.

The four trials follow a social impact bond pilot to tackle reoffending in Peterborough Prison launched by the Ministry of Justice last September.

Liverpool and Essex are also looking to trial an initiative using social impact bonds to support vulnerable adolescents and their families with the objective of preventing care entry.

Nick Hurd, Minister for Civil Society, said: “We must not be afraid to do things differently to end the pointless cycle of crime and deprivation which wrecks communities and drains state services. Social impact bonds could open serious resources to tackle social problems in new and innovative ways.

"We want a stronger sense of responsibility across our society and to give people working on the frontline the power and resource they need to do their jobs properly. Social impact bonds could be one of many Big Society innovations that will build the new partnerships between the state, communities, businesses and charities and focus resources where they are needed. The four local authorities that will pioneer this work are taking a bold and exciting step.”

Children’s Minister Tim Loughton said: “Family intervention demonstrates that the lives of children and young people can be turned around when their families, who often have many complex problems, are targeted intensively.

“This is also a more efficient way for local authorities to work, as evidence shows that fewer children are taken into care or excluded from school. Using social impact bonds will raise additional money to be directed at helping more families.”

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11.Aug.2011

A writ of habeas corpus has been granted against an unnamed local authority after a judge decided a patient had been unlawfully detained in a mental hospital and his mother had been given misleading advice as to her rights.

The case of ‘CX’ against the authority and an NHS trust, also unnamed, was heard by Mr Justice Spencer in the Administrative Court.

CX was detained under section 3 of the Mental Health Act 1983 on 22 December 2010 on the application of an approved mental health professional employed by the local authority.

It was argued that his detention was unlawful because of a lack of proper consultation with his mother, and because she was misled as to her statutory rights when she withdrew her objection to the application for his detention.

CX is 21 and suffers from schizophrenia. On 30 November 2010 he was compulsorily detained for assessment for a period due to expire on 27 December.

His mother was unhappy with the care given but the treating psychiatrist felt CX was a danger to himself and others and asked for a section 3 assessment.

The act though says that any hospital admission under section 3 cannot be made where the person’s nearest relative objects, or has not been consulted.

The judge said it was for the local authority to satisfy him that CX’s detention was lawful and that it “failed to persuade me that there was sufficiently informed consultation with MX [CX’s mother] to satisfy the requirement of the Act that the nearest relative be consulted before the section 3 application was made”.

He was also not satisfied that MX made a “full and effective” withdrawal of her objection to CX’s detention.

“On the contrary, I am driven to conclude that her withdrawal of consent was initiated by the incorrect and misleading advice she was given that she could only maintain her objection in the face of a displacement application if she was legally represented in the court proceedings which would follow,” the judge said.

“I should add that even if the burden of proof had been the other way round, I would have been satisfied and sure on all the evidence before me of the matters which I have found.”

He granted an immediate writ of habeas corpus but said the case had turned entirely on “its unusual facts”.

“My findings are not intended to prescribe, and must not be interpreted as prescribing in any way what may or may not amount to sufficient consultation in another case,” the judge said.

“Each case is different and what is required by way of consultation will depend upon the individual facts and circumstances and upon the personalities of those involved.”

Mark Smulian

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10.Aug.2011

Deputies who act for people who lack mental capacity need not be drawn from among lawyers, the Ministry of Justice has said.

It has launched a consultation, running until 27 October, on whether care charities and other voluntary sector bodies could better meet the needs of people under the care of the Office of the Public Guardian.

Deputies are appointed by the Court of Protection when there is either a dispute over who should look after a person’s affairs, or there is no-one else available.

They need not be lawyers, but in practice almost all are, even though the work does not always require legal knowledge.

Public Guardian, Martin John, said: “Deputies play a very important role in supporting some of the most vulnerable people in our society. 

“Quite often it may be appropriate for a legally qualified deputy to be appointed. But charities and other third sector organisations potentially have a huge amount to offer in this area. They bring with them a unique perspective based on many years working closely with users and a deep understanding of the issues that they face.”

He is seeking evidence on how charities could work in this area and what support they would need from the OPG.

The call for evidence said the needs of many people concerned were straightforward and do not need the skills to manage complex financial portfolios or litigation from a deputy.

“For example, a property and affairs deputy may just need to ensure that financial needs are identified, bills are paid, and look after day-to-day living expenses,” the consultation document said.

“Many of these people would benefit from the ‘soft’ or pastoral skills of advocates, social workers and similar, and the value for money represented by organisations run on a not-for-profit basis.”

Mark Smulian