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02.Jun.2011

A recent case underlines the difficulties that local authorities face when seeking to intervene to protect a vulnerable adult, Alex Ruck Keene and Victoria Butler-Cole

LBB v JM, BK and CM (unreported, 5 February 2010)

This case, a transcript of which has only recently been made available, is a judgment of Mr Justice Hedley in a case concerning allegations of sexual abuse against the step-father of an incapacitated young adult.  It is of interest because of general comments made about cases in which a public authority seeks to interfere with the Article 8 rights of family members by preventing or imposing restrictions on contact, on the basis of safeguarding concerns.

The judge said this: "The local authority took the view that since the intervention of the court would engage a potential breach of the Article 8 rights of the parties, that it may be incumbent upon them to establish on a factual basis why it was that the court‟s jurisdiction should be exercised.  Broadly speaking, I would endorse that approach and recognise that where an Article 8.2 justification is required then the case should not be dealt with purely as a welfare case if there are significant factual issues between the parties which might bear on the outcome of the consideration under Article 8.2 as to whether state intervention was justified.

"The Mental Capacity Act does not contain provisions equivalent to the threshold provisions under s.31.2 of the Children Act.  Nor should any such provisions be imported in it as clearly Parliament intended that they should not be, but an intervention with parties‟ rights under Article 8 is a serious intervention by the state which requires to be justified under Article 8.2.  If there is a contested factual basis it may often be right, as undoubtedly it was in this case, that that should investigated and determined by the court."

The judge also confirmed that the burden of proof in establishing factual allegations lies on the public authority, and that the standard of proof is the balance of probabilities.

On the facts of the case, the judge found that there was unacceptable physical contact, though not sexual abuse.  It did not follow from this that there should be no contact with P. Indeed, the judge considered in some detail methods of indirect contact and arrangements that might be made to enable P to have supervised contact with her step-father in the future, even though P was presently saying that she did not want to see him.    
Comment

The judgment will be of particular interest to local authorities, as it demonstrates the gap between safeguarding concerns being raised, and obtaining findings of fact within the court that provide a sufficient basis for substantial restrictions on contact.

In the authors’ experience, it can be easy for a local authority to assume that a history of suspicious incidents and safeguarding alerts will translate easily into declarations restricting or banning contact, when in reality the process is much more complicated.

Common difficulties include a lack of direct witness evidence due to the circumstances of the suspected abuse or simply the lapse of time and the movement of staff, and by the absence of consistent or sometimes of any evidence from P him or herself.

The decision also ties in with the recent exhortation of Mr Justice Charles in the case of A Local Authority v PB and P [2011] EWHC 502 (COP), the parties should work  to ensure that fundamental disputes of fact are resolved at an appropriate (and often early) stage in proceedings.

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

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27.May.2011

The Local Government Ombudsman (LGO), has criticised the failure of the City of London’s adult social care team to pay agreed funding for respite care for over four-and-a-half years.

‘Mrs Rose’ has an advanced form of dementia and is completely dependent upon others for all aspects of her personal care and welfare. ‘Ms White’, her daughter, is in her seventies and has cared for her mother at home for over 13 years.

In 2005, the Council agreed to provide a direct payment for 30 hours per week of personal care for Mrs Rose. It agreed an additional carer’s respite payment to Ms White of £960 per month, to enable Ms White to have regular breaks from the demands of caring for her mother. Due to an administrative error, the Council never made any respite care payments to Ms White.

The Ombudsman said that a social worker and Ms White realised that something was wrong in 2009. However, when Ms White tried to complain, the Council took far too long to respond and did not deal with the complaint properly, the Ombudsman, Dr Jane Martin, found.

The Ombudsman found fault because the Council assessed Ms White to be eligible for a respite payment and she should have been receiving this since 2005. As a result, Ms White was not able to take any breaks from her caring role. At the time of the complaint to the LGO, Ms White was under a great deal of strain and was exhausted.

No-one checked Ms White’s accounts to see how she was managing the funds and, for a period of six months, due to budget pressures, the Council did not offer support and advice to recipients of direct payments. It is a legal requirement for the Council to provide auditing and support services for those in receipt of direct payments.

Commenting on the report the Ombudsman said “Ms White suffered grave injustice as a result of the Council’s failings as she did not receive the services that she needed. I am pleased to say that the Council has apologised and paid her compensation of £50,800 – the value of the lost respite payments. I have also asked for Ms White to be paid £500 to recognise the inconvenience and distress caused by the delay in dealing with her complaint.”

The names used in the report are not the real names, for legal reasons.

The full report can be downloaded from the following link: http://www.lgo.org.uk/news/2011/may/city-london-failed-fund-respite-care-woman-dementia/

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26.May.2011

The Law Commission has published its final report on reforming adult social care law. Tim Spencer-Lane, one of the lawyers working on the project, outlines some of the key proposals.

The legal framework for the provision of adult social care services dates back to 1948, and consists of a complex and confusing patchwork of legislation. The Law Commission’s review of adult social care law was announced in 2008 and followed by the publication of a scoping report (Law Commission (2008) Adult Social Care: Scoping Report); consultation paper (Law Commission (2010) Adult Social Care: A Consultation Paper. Consultation Paper No 192); and consultation analysis (Law Commission (2011) Adult Social Care Consultation Analysis).

We have now published our final report which sets out our recommendations for the reform of adult social care (Adult Social Care (2011) Law Com No 326). The following article provides a summary of some of the main recommendations.

Structure of law reform

In our view, the consolidation and simplification of the existing legal framework would be best achieved by establishing a unified adult social care statute. This could be achieved by separate statutes in England and in Wales or a single statute covering both countries. This issue has been settled in practice by the introduction of Part 4 of the Government of Wales Act 2006 which has given the National Assembly for Wales the power to legislate for all of adult social care. We have therefore recommended there should be single statutes for adult social care for each of England and Wales, and that in Wales this should be implemented by means of an Act of the National Assembly. We also recommend that each statute should be accompanied by a single Code of Practice for adult social care. The Government’s power to issue directions in this area should be repealed.

Statutory principles

We recommend that the new statute should establish a single over-arching statutory principle that adult social care must promote or contribute to the well-being of the individual. In effect, individual well-being must be the basis for all decisions made and actions carried out under the statute.

The statute would not provide a precise definition of well-being, but would set out a checklist of factors that must be considered by decision makers. Thus, wherever practical and appropriate the decision maker would be required to:

• assume that a person with capacity is the best judge of their own well-being;
• follow the individual’s views, wishes and feelings;
• ensure that decisions are based upon individual circumstances and not blanket assumptions on the basis of age, appearance or condition;
• give individuals the opportunity to be involved in decisions;
• achieve a balance with the well-being of others;
• safeguard adults from abuse and neglect; and
• use the least restrictive solution.

Assessments

In our scheme there would be two levels at which adult social care services could be provided. The first is a universal level, with the provision of universal services to the wider community to help prevent or delay the need for more targeted social care interventions. Here local authorities would have a broader role to ensure the provision of information, advice and assistance to people who have not had or do not want an assessment, or who are not eligible for services.

The second level would be targeted social care services, provided following a community care assessment. The new statute would set out a single, clear duty to assess a person. As under the existing law, there would be a low qualifying threshold for an assessment which is triggered where it appears to a local authority that a person may have needs that could be met by community care services. So long as this threshold is met, the duty will be triggered even if the person does not consent to an assessment. However, under our scheme a local authority could accept a person’s refusal of an assessment as discharging its duty to assess unless there were safeguarding concerns or concerns about the person’s capacity.

Eligibility for services

Following an assessment, local authorities would be required to determine whether a person’s social care needs are eligible needs, using eligibility criteria, and to provide or arrange community care services to meet all eligible needs. The duty to meet eligible needs would be an individual duty, enforceable through judicial review.

The statute would require the Secretary of State and Welsh Ministers to make regulations prescribing the eligibility framework for the provision of community care services, which local authorities would have to use to set their eligibility criteria. However, our scheme would also allow the Governments to set eligibility criteria at a national level in England or in Wales, if either Government wished to do so.

Carers’ assessments and eligibility

The new statute would set out a single and standalone duty, which requires local authorities to undertake a carer’s assessment. This duty would not depend on the cared-for person simultaneously receiving a community care assessment, but would require only that the cared-for person is someone for whom the local authority has a power to provide services. In effect, the duty to assess a carer will arise even if the cared-for person has refused an assessment or is not eligible for services.

The new duty to assess a carer would remove the existing requirement for the carer to be providing a substantial amount of care on a regular basis. Furthermore, a carer would no longer be required to make a formal request for an assessment in order to trigger the assessment duty.

Once a local authority has undertaken a carer’s assessment, it would need to decide whether to provide services to the carer. Under our scheme, both Governments would be required to prescribe the eligibility framework for carers’ services in regulations. Local authorities would be required to meet the eligible needs of carers, either by providing services to the cared-for person or to the carer.

Adult protection

As well as setting out the legal framework for the provision of care and support, our scheme would set out the duties and powers of local authorities to safeguard adults from abuse and neglect. The new statute would provide clearly that local social service authorities have the lead co-ordinating responsibility for safeguarding. As part of that responsibility, the statute would place a duty on local authorities to investigate adult protection cases or cause an investigation to be made by other agencies.

The duty to investigate would apply to an adult at risk, who would be defined through four elements:

1. The person must appear to have health or social care needs, including carers (irrespective of whether or not those needs are being met by services).
2. The person must appear to be at risk of harm (not significant harm as set out in the existing statutory guidance).
3. The person must appear to be unable to safeguard themselves from harm as a direct result of their health or social care needs.
4. The local authority must believe it is necessary to make enquiries. This may be the case because, for example, other less restrictive courses of action (such as a community care assessment) will not remove or reduce the harm and abuse.

Harm would be defined in the statute as including but not limited to:

• Ill treatment (including sexual abuse, exploitation and forms of ill treatment which are not physical);
• the impairment of health (physical or mental) or development (physical, intellectual, emotional, social or behavioural);
• self-harm and neglect;
• unlawful conduct which adversely affects property, rights or interests (for example, financial abuse).

The new statute would give local authorities the lead role in establishing and maintaining adult safeguarding boards. The statute would specify the following functions for these boards:

• to keep under review the procedures and practices of public bodies which relate to safeguarding adults;
• to give information or advice, or make proposals, to any public body on the exercise of functions which relate to safeguarding adults;
• to improve the skills and knowledge of professionals who have responsibilities relating to safeguarding adults; and
• to produce a report every two years on the exercise of the board’s functions.

The local authority, NHS and police would each be required to nominate a member to the board with appropriate knowledge and skills. The Care Quality Commission, the Care and Social Services Inspectorate Wales and the Healthcare Inspectorate Wales would have a power to nominate a representative. The adult safeguarding board would also be responsible for commissioning serious case reviews.

The new statute will not set out new compulsory and emergency powers for local authorities in adult protection cases, such as powers of entry or exclusion orders, unless either Government decided that such powers were needed. Furthermore, the existing power to remove a person from their home to suitable premises under section 47 of the National Assistance Act 1948 would be repealed, on the basis that it is incompatible with the European Convention on Human Rights, has several operational difficulties and is in practice obsolete.

Conclusion

The final report marks the completion of the Law Commission’s project on adult social care law. The Government has announced that it will introduce legislation in 2012 to implement the recommendations it accepts in our final report. The recommendations contained in our final report would establish a neutral legal framework that is not wedded to any particular policy and is capable of accommodating different policies and practices in the future. Underpinning this framework are the core entitlements and rights that are crucial to the existing legal framework. The recommendations set out in our final report create a clear modern and effective legal framework for both now and in the future.

Tim Spencer-Lane is a lawyer at the Law Commission.

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24.May.2011

Four officers at Leicestershire Police will face a misconduct meeting after an investigation by the Independent Police Complaints Commission into the force’s handling of the Fiona Pilkington case.

Mrs Pilkington killed herself and her disabled daughter, Francecca, in 2007 after suffering more than a decade of anti-social behaviour. There were 33 recorded incidents between November 1997 and October 2007 when the family had contact with the police.

The IPCC concluded that Leicestershire Police’s error in not identifying Mrs Pilkington and her children as a vulnerable family “lay at the core of its failure to provide a cohesive and effective approach to the anti-social behaviour the family suffered”.

The IPCC’s 180-page report also found that:

• Police officers had systems in place which, “had they been used properly”, could have shown the true level of harassment the family were subjected to over a number of years
• Incidents were too often dealt with by police officers “in isolation and with an unstructured approach”
• The road where the family lived was not considered by the force to be an anti-social behaviour ‘hotspot’, and was therefore not targeted for a more proactive response
• Police officers should have picked up on Mrs Pilkington’s repeated assertion the situation was “on-going” and that it was her family in particular being targeted
• Officers did not identify a difference in the level of seriousness between general anti-social behaviour and specific harassment of the Pilkington family, and they failed to consider their treatment as hate crime
• Aside from the family’s vulnerability, Fiona was a member of a local community “who was reporting incidents of crime and anti-social behaviour and simply asking police to carry out their responsibilities, which they failed to do”.

The four officers facing misconduct proceedings are an inspector, a sergeant and two police constables. Another constable is receiving management action for unsatisfactory performance.

The IPCC suggested that Leicestershire Police had learnt a number of lessons since the deaths. The force had made some significant changes to how it monitored anti-social behaviour and dealt with vulnerable people, and had improved its management structures, the Commission reported.

IPCC Commissioner Amerdeep Somal said: "Fiona, her mother, her neighbours and MP had all contacted the police to inform them that she had repeated and justifiable concerns about her family’s predicament. Yet, no one person gripped these reports and took charge to strategically manage and oversee what should have been a targeted police response.

“There was nothing in place to ensure the Pilkington family were considered by police as vulnerable or repeat victims, contrary to the force’s own strategy. Systems were in place for officers to have linked the catalogue of incidents but these were not well utilised. Police missed several opportunities to take robust action, inadequately investigated criminal allegations on some occasions and failed to record information on their own intelligence system.”

Somal said she struggled to see what more Mrs Pilkington could have done. “She did all the right things. She informed the police and other agencies involved with her family of the on-going problems. She did as she was told and she even kept a diary and records of the incidents. She was not alone in drawing her family’s plight to police attention. This was on top of raising her two children, each of whom had their specific difficulties which presented further challenges for their mother. Her records portray a sense of resignation that nothing would be done and the youths would just carry on.”

The IPCC Commissioner acknowledged that some action was taken by police and some officers did try to assist the family, but pointed to a failure to co-ordinate their efforts. Somal also highlighted the fact that other organisations had also had contact with the family, adding that their failures had been commented on by the Coroner.

Other findings from the investigation were:

• It was apparent how increasingly difficult it was becoming for Fiona Pilkington to manage Francecca, and how concerned she was about her daughter’s future as an adult
• Warning letters and ‘acceptable behaviour contracts’ were being issued by the local authority and police officers without any co-ordinated system in place to share information
• There was a tendency for incidents to be closed without any record of action having been taken, and without any supervising officer checking matters had been dealt with satisfactorily
• The Pilkington family was never specifically brought to the attention of Leicestershire Police’s Anti-Social Behaviour officer or their dedicated Hate Crime officer
• There was a lack of awareness, both locally and nationally, by police in recognising people with learning disabilities and mental health issues as targets for hate crime
• The force did not incorporate the Home Office guidance Hate Crime: Delivering a Quality Service until October 2007;
• From 2004 onwards there was a lack of supervision and confusion over the line management of principal beat officers in Barwell and Earl Shilton.

Leicestershire Constabulary said it accepted the IPCC’s findings and recommendations.

Chief Constable Simon Cole said: “We acknowledge, as we did following the inquest in 2009, that our actions failed to meet the family’s needs and in retrospect we would have done things differently. We again offer our unreserved apologies for whatever extent the Force’s actions contributed to Fiona’s mindset at the time that she and Francecca died.

“The IPCC acknowledge in their report that we have learnt many lessons from Fiona and Francecca’s tragic deaths and that we continue to make significant changes to the way we deal and respond to these types of incidents.”

Cole added: “The report concludes that even the officer who had the fullest picture of the family could in no way have foreseen the action taken by Fiona.  It also acknowledges that action was taken by police and officers did try to assist the family. The report recognises, as did the Coroner’s inquest in 2009, that in addition to the anti-social behaviour Fiona was suffering, she also had concerns about other areas of her life.”

The chief constable insisted that tackling anti-social behaviour and ensuring people get the support they need was an absolute priority for Leicestershire Constabulary. “Over the past three-and-a-half years we have, and continue to, put measures in place to safeguard the vulnerable and improve the way we deal with this type of behaviour which can have a devastating effect on individuals, families and communities,” he said.

Cole described as “encouraging” statistics showing that the number of anti-social behaviour incidents had dropped by 31% since 2007/08 and satisfaction with the service among victims of anti-social behaviour had increased to 82%. “The commitment to improve our response continues and tackling anti-social behaviour is a major priority for the force with a target set by the Police Authority for us to reduce levels even further,” he said.

Details

17.May.2011

All local authorities will be required to have a Safeguarding Adults Board as part of a drive to strengthen the laws protecting vulnerable people, the Care Services Minister has confirmed.

The announcement by Paul Burstow comes a week after the Law Commission recommended that such boards be put on a statutory footing, with councils given the lead role in establishing and maintaining them.

The Department of Health said that while adult safeguarding boards already exist in each local authority, they are not mandatory and their effectiveness was variable.

Making the boards mandatory would send “a strong signal” about their importance and the need to work in partnership with collective accountability to local communities, it added. However, the DH said boards’ freedom to operate in locally flexible ways would be maintained.

The Department has also published new guiding principles on safeguarding, which set out the government’s policy objective of preventing and reducing the risk of harm to vulnerable people.

The statement of government policy calls on local authority social services and housing, health, the police and other agencies to use six principles to underpin and benchmark their arrangements:

• Empowerment – supporting people to make decisions and have a say in their care
• Protection – support and representation for those in greatest need
• Prevention – it is better to take action before harm occurs
• Proportionality – safeguarding must be built on proportionality and a consideration of people’s human rights
• Partnership – local solutions through services working with their communities, and
• Accountability – safeguarding practice and arrangements should be accountable and transparent.

The statement also describes in broad terms the desired outcomes for adult safeguarding, for both individuals and agencies.

It is intended to build on No Secrets, which will remain as statutory guidance until at least 2013.

Paul Burstow said: "I am determined that we strengthen the law to protect the most vulnerable people in our society. By making Safeguarding Adults Boards mandatory, we aim to make them more effective and ensure those at risk of harm or exploitation will be safer.

“I want to see local agencies use the six principles as a basis to develop and test their own actions to ensure that vulnerable people receive the protection they need regardless of where they live."

The statement of government policy on adult safeguarding canb e downloaded here.

Philip Hoult

Details

13.May.2011

The Information Commissioner’s Office has warned local authorities to make sure they have adequate measures in place to keep information held by social services departments secure.

The call came after the watchdog criticised Somerset County Council for the way it handled a breach of the Data Protection Act that saw a social service assessment of a local teenager sent to the wrong family.

Somerset County Council reported the breach to the ICO in February this year. The assessment contained sensitive personal information about the teenager’s behavioural history and medical background.

The mistake was made by an employee in the social services department who was handling two similar cases at the same time, an ICO investigation found.

The watchdog said there were failings about how the incident was handled, with the recipient first being told by another Somerset CC employee to throw the assessment away. They were then advised to wait for it to be collected by the council.

Somerset’s chief executive, Sheila Wheeler, has signed an undertaking to make staff aware of the authority’s policies and procedures and to provide them with appropriate training.

The council is also to introduce quality control checks that will be made before documents containing personal data are released.

The ICO’s acting Head of Enforcement, Sally-Anne Poole, said: “The information collected by social services departments is often extremely sensitive. Local authorities should make sure they have adequate measures in place to keep this information secure, especially where there is the potential for human error.

“Even though the information was returned to the council the damage had already been done and will have caused considerable embarrassment to those affected.”