Details

12.May.2011

The Local Government Ombudsman has recommended that a local authority pay £25,000 to a man with mental health problems who the council had bankrupted.

Torbay Council took proceedings against the debtor (‘Mr Castle’) over a council tax debt of £2,248. He complained to the LGO that the local authority had failed to have proper regard to his personal circumstances, including his mental health.

In her report the LGO, Dr Jane Martin, acknowledged that Torbay had had difficulties engaging with Mr Castle. It was known that he did not open his post, which was left to accumulate over a long period.

None of the council’s officers visited Mr Castle at his home. However, the LGO said a bailiff had noted warning signs that might reasonably have alerted the council to the possibility that the debtor was unwell.

The Ombudsman said she accepted that Torbay had a duty to its taxpayers to try to recover money owed to it. Dr Martin also recognised that, having obtained liability orders and having tried to collect its debts through the use of bailiffs, the council was “short of options” as to how it could collect the money it was due.

But she added: “It is clearly not the case that bankruptcy should never be contemplated, but the consequences bankruptcy can impose upon a debtor are severe and in selecting options for recovery the impact on the individual debtor should be taken into account.”

The LGO said that in making decisions about debt recovery, she expected that council officers should make reasonable efforts to contact the debtor in person.

Dr Martin concluded that the council had not followed due process in making Mr Castle bankrupt. First, she found that the council had failed to document its decision making in respect of the recovery action by way of bankruptcy.

“I expect that decisions about debt recovery should be recorded with evidence that the decision maker is satisfied that the debtor can adequately defend themselves against the council’s actions,” the LGO said, adding that Mr Castle’s payment history alone was not grounds for Torbay to conclude he was able to do so on this occasion. “Once the process server reported that he had doubts about Mr Castle’s health, the council should have conducted a review of the case file in light of that information and that review should have been documented.”

The LGO also concluded that the council failed to reconsider its decision to pursue bankruptcy when information came to light that Mr Castle might be considered suicidal.

Dr Martin decided that had Torbay’s failings not occurred, the council would not have continued with the bankruptcy proceedings and Mr Castle would not have incurred £24,000 in costs associated with that action.

The LGO recommended that Torbay issue a formal apology to Mr Castle and pay him £25,000 in order to put him in the position he would have been in had no maladministration occurred.

Details

11.May.2011

Councils will be handed clear and concise rules governing when they must provide services in the biggest shake-up of adult care law for more than 60 years, the Law Commission has vowed.

Publishing its final report on adult care law reform today, the Commission claimed that a “single, clear, modern” statute and code of practice would pave the way for a coherent social care system. The government's law reform body pointed out that the current legal framework dated back to 1948 and consisted of a “complex and confusing patchwork of legislation”.

If implemented in full, the proposals would see more than 40 statutes repealed or amended and 1,000s of pages of guidance “consigned to history”.

The Law Commission’s recommendations also include:

Statutory principles

• Statutory principles would establish the overarching purpose of adult social care as to 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 before a decision is made in relation to an individual

New legal rights to services for carers

• There would be a single and standalone duty to undertake a carer’s assessment. It would not depend on the cared-for person simultaneously receiving a community care assessment, but would only require that the cared-for person is someone for whom the local authority has a power to provide services
• The “overly complex” existing requirement for the carer to be providing ‘a substantial amount of care on a regular basis’ would be removed. In addition, a carer would no longer be required to make a formal request for an assessment in order to trigger the assessment. Instead the duty to assess would be triggered where it appears to the local authority that the carer may have, or will have upon commencing the caring role, needs that could be met by the provision of carers’ services or services to the cared-for person
• A carer’s assessment, once triggered, would be required to focus on the carer’s ability to provide and to continue to provide care for the person cared for and also take into account whether the carer wishes to work or undertake education, training or any leisure activity
• Once a local authority has undertaken a carer’s assessment, it would need to decide whether to provide services to the care. The eligibility framework for carers’ services would be prescribed in regulations, and local authorities would use that framework to set their eligibility criteria. Local authorities would be required to meet the eligible needs of carers

Duties on councils and the NHS to work together

• Each social services authority would be under a duty to make arrangements to promote co-operation with specified bodies, including other authorities, the NHS and police
• There will also be an enhanced duty to co-operate in particular circumstances, such as when a community care or carer’s assessment is taking place, when services are being provided, or during adult protection investigations. The requested agency would be required to give due consideration to the request, and provide written reasons if it refuses to co-operate

A single, streamlined assessment and eligibility framework

• 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. If this threshold is met, the duty will be triggered even if the person does not consent to an assessment. However, under the scheme a local authority would be able to accept refusal of an assessment as discharging its duty to assess unless there were safeguarding concerns or concerns about the person’s capacity
• To help prevent a service-led approach to assessment, the new statute would specify that an assessment must focus on the person’s care and support needs and the outcomes they wish to achieve. In undertaking assessments, local authorities would be required to consult with the individual and their carer, unless it was impossible to do so
• The Secretary of State and Welsh Ministers would be required to make regulations prescribing how an assessment should be carried out
• To encourage joined-up assessments, the new statute would make it clear that a local authority can carry out a community care assessment at the same time as any other assessment is carried out. A local authority would also be able to authorise others, such as a health professional, to undertake the assessment or parts of the assessment on its behalf, subject to the authority retaining overall control of the process. This means health and social care assessments could be carried out by the same person
• An assessment of need and the application of eligibility criteria will be the sole means by which a person’s eligibility for community care services (including residential care) is determined. 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 Health Secretary and Welsh Ministers would 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. The code of practice would specify how local authorities should set their eligibility criteria, including the needs the authority must, at a minimum, provide services to meet. However, the Law Commission 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
• To ensure existing rights to services are maintained, the duty to provide residential accommodation under section 21 of the National Assistance Act 1948 would be retained in the new statute as a long-stop legal duty. This would provide a right to residential accommodation to those who fall below the local authority eligibility criteria but still have a need for care and attention which is not otherwise available to them

Protection for service users from abuse and neglect

• A new legal framework will be established setting out the duties and powers of local authorities to safeguard adults from abuse and neglect
• It would be made clear that local social services authorities have the lead co-ordinating responsibility for safeguarding and would be under a duty to investigate adult protection cases or cause an investigation to be made by other agencies, in individual cases
• To help facilitate multi-agency working, local authorities would have a power to request co-operation and assistance from certain bodies – such as health bodies and the police – during adult protection matters. The requested body would have to give due consideration to the request
• The duty to investigate will apply to an ‘adult at risk’ which would be defined. This definition includes that the adult appears to be at risk of harm, rather than significant harm as set out in the existing statutory guidance

Adult safeguarding boards

• Adult safeguarding boards would be put on a statutory footing for the first time. Local authorities would be given the lead role in establishing and maintaining them.
• The statute would set out the boards’ functions, namely to: keep under review the procedures and practices of public bodies which relate to safeguarding adults; give information or advice, or make proposals, to any public body on the exercise of functions which relate to safeguarding adults; improve the skills and knowledge of professionals who have responsibilities relating to safeguarding adults; and produce a report every two years on the exercise of the board’s functions.

The Final Report can be downloaded here.

The Law Commission said: “For the first time, older people, disabled people, those with mental health problems and carers will be clear about their legal rights to care and support services. Local councils across England and Wales will have clear and concise rules to govern when they must provide services.”

Frances Patterson QC, the Public Law Commissioner who led the review, added: “Today signals a significant step in moving us closer to a clearer and more coherent framework for adult social care. Our recommendations will bring much needed clarity and accessibility to this important area of the law, and have a major, beneficial impact on the lives of many of our most vulnerable citizens.

“Our recommendations will protect the strong rights that exist in adult social care law while, at the same time, ensuring that emerging policy objectives, such as personalisation and self-directed support, are recognised fully in statute law.”

The government has said it will introduce legislation in 2012 to implement the recommendations it accepts from the final report.

Care Services Minister Paul Burstow said: “The current law on adult social care lacks coherence, is hard to understand, and looks back to the Poor Law for its principles. We now have the opportunity to update the law for the 21st century, placing principles of personal control and independence at the heart of social care law.

“The Law Commission’s work provides us with a strong foundation upon which to build, as we develop legislative reforms. We will take this work together with the recommendations of the independent Commission on the Funding of Care and Support in the summer to set out a comprehensive reform in our Care and Support White Paper.”

Cllr David Rogers, chairman of the Local Government Association’s Community Wellbeing Board, said the Law Commission report signalled a much-needed move toward simplifying the confusing mix of laws which currently govern adult social care.

“It is clear that the current patchwork of legislation and guidance must be replaced with a clear legal basis for the gathering and sharing of people’s information between service providers to ensure more efficient assessment of need and service delivery,” he said. “We have consistently argued for the adoption of an approach to adult wellbeing which puts more faith in individuals to decide what support they need. This report takes us closer to that objective.”

Cllr Rogers said he hoped that the work of the Dilnot Commission on the funding of care and support for adults would lead to even further progress.

“’The ultimate aim is for local authorities, the NHS and other service providers to link up more effectively to ensure people receive the support they need at the optimum cost,” he said.

However, Cllr Rogers warned that it was vitally important in the context of cuts to council budgets and increasing demand for services that reform of adult social care did not lead to increased administration costs. "The Law Commission indicated from the outset that their proposals will be resource-neutral. We will be working as this report is translated into legislation to ensure that is the case.”

Philip Hoult

Details

09.May.2011

The London Borough of Hammersmith & Fulham and the Royal Borough of Kensington & Chelsea are to press ahead with greater integration of their legal teams in the short term rather than seek a three-way link-up with Westminster City Council, it has been confirmed.

The focus on a bi-borough approach until 2013 is revealed in a progress report submitted this month to the Cabinets at the three authorities. Hammersmith & Fulham and Kensington & Chelsea already share a joint Director of Legal Services.

However, the three councils are to explore hard and soft partnership models with private practice on a tri-borough basis over this period.

The report goes on to say that in the medium term – from 2013 onwards – consideration would need to be given to creating shared adults and children’s legal teams to support the new combined services in 2012/13. It notes that Westminster City Council is tied into a contract until 2013.

No savings are expected to be made in legal as a result of tri-borough working in either 2012/13 or 2013/14, but it is predicted that £300,000 could be achieved in 2014/15.

The overall position in relation to legal is to be reviewed again in 2013, the report says.

Hammersmith & Fulham and Kensington & Chelsea have each delivered savings of £125,000 by 2011/12 through bi-borough working.

Meanwhile in February this year Westminster announced plans to make £4m in savings from back office functions of its legal, communications, policy and performance departments.

The latest progress report covers the steps the councils are taking to secure their target of £35m savings by 2014/15.

The Cabinets are expected to decide in June whether to combine services in the following areas:

• fostering and adoption services and youth offending services. This would see the creation of a single Local Safeguarding Children Board
• library services
• environment management teams at Hammersmith & Fulham and Kensington & Chelsea.

The June meetings will also hear detailed proposals about combining adult services, education services and corporate services.

Leader of the Royal Borough of Kensington and Chelsea Cllr Sir Merrick Cockell said: "Everyone knows the financial straits councils find themselves in. To protect our services we have taken a difficult and challenging road but as this report shows we are making progress and we are making it happen."

Hammersmith and Fulham Council leader Cllr Stephen Greenhalgh said: "This is a common sense way of dealing with the big financial pressures facing councils up and down the country. Combining services is not only more cost effective but would also allow us to improve services in many areas such as allowing Hammersmith residents to access libraries in Westminster and vice versa."

Philip Hoult

Details

06.May.2011

The UK needs to improve the legal and fiscal framework for public service mutuals if they are to prosper fully, a report commissioned by trade association Co-operatives UK has argued.

The report, Time to Get Serious: International Lessons for Developing Public Service Mutuals, said the UK must learn from the experiences of Spain, Italy and Sweden, where public service cooperatives are said to be flourishing.

Report author Jonathan Bland, managing director of Social Business International, said the governments of the three countries had provided long-term commitment and investment to social enterprises.

Italy has arguably the most extensive and successful programme of mutualisation anywhere in the world, he added, with more than 7,000 co-operatives providing social care, health and employment services. Their success comes from creating a clearly defined legal structure for “social co-operatives”, he suggested.

Bland said: "The international review shows that in all three countries, the growth of public service co-operatives has been closely linked to enabling legal and fiscal frameworks, with sector-led support structures that are able to provide specialist advice and share learning.

"I am impressed with the government's vision for public service mutuals, however, the UK is not yet equipped to make it happen.”

Bland argued that understanding of the business models was limited and support was fragmented. He also criticised the failure to invest sufficient resources into the area.

The report said: “In the UK, there is an array of different models and some risk therefore that core elements of being a mutual or a co-operative could be watered down or lost in favour of quasi-mutual private enterprises.

“There is also still work to do to make it more straightforward to form a co-operative or mutual. There may also be a case for exploring the potential for intelligent tax or other incentives to encourage the capitalisation of public service co-operatives and mutuals, for example through bond issues or co-investment in shares.”

Bland urged the government to invest in the creation of a new long-term specialist support service for public servants to provide training, business advice and help with access to finance.

Ed Mayo, Secretary General of Co-operatives UK, says: "The government has ambitious targets for the number of public sector workers setting up co-operatives, and predicts that as many as one million people, one in six public sector employees, could be working in new mutual enterprises delivering public services by 2015.

"However, with the international review concluding that the UK policy context does not emerge particularly well from the comparison with other countries, this must be something of a reality check."

Bland’s report can be downloaded here.

Details

05.May.2011

The long-awaited Court of Appeal ruling in P and Q (previously MiG and MeG) on deprivations of liberty leaves a number of questions unanswered, write Alex Ruck Keene and Victoria Butler-Cole.

The case of P and Q v Surrey County Council [2011] EWCA Civ 190, which had previously been known as MiG and MeG, is the first decision of the Court of Appeal as to what constitutes a deprivation of liberty. The two incapacitated adults were sisters, aged 18 and 19 years old, who both suffered from a learning disability. P had a moderate to severe learning disability and found it difficult to communicate. Q had better cognitive functioning but exhibited challenging behaviours.

At the time of the first instance hearing before Parker J, P was living with a foster family where she had her own bedroom, and where the house was not locked, although if P had tried to leave on her own, her foster mother would have restrained her. P attended college each day and went out on trips and holidays. Q was living in a small residential placement which did not qualify as a care home. She had her own bedroom and was not locked in, but was always accompanied when she left. She also attended college. She sometimes required physical restraint when she attacked other residents, and required continuous supervision and control (to meet her care needs). She was in receipt of medication for controlling her anxiety. Did either arrangement constitute a deprivation of liberty?

Under the ECtHR caselaw, three elements must be satisfied for a deprivation of liberty to exist: an objective confinement, attributable to the State, to which the individual has not validly given consent. The only issue before the Court of Appeal was whether there was an objective confinement: the existence of the other two elements was not disputed.

The first issue dealt with was the status of any objection to the alleged confinement by the individual. The Official Solicitor for P and Q submitted that this was irrelevant to whether there was objectively a confinement. The Court of Appeal disagreed, concluding that where there is an objection, this may well generate further restrictions (for example preventing the person from leaving, or forcibly returning them), and that where there is no objection, there may be a ‘peaceful life’ which is equally relevant to whether there is a confinement.

The second issue examined by the Court was the use of medication. Again, the conclusion was reached that the use of tranquilising medication was a pointer in favour of objective confinement, and the absence of medication a pointer the other way.

The third issue considered was the purpose of the restrictions. At first Instance, Parker J had appeared to suggest that a benign or benevolent purpose (ie. to provide care and a safe environment) might mean that restrictions were not to be viewed as contributing to a deprivation of liberty. The Court of Appeal, in somewhat unclear terms, said that it was wrong to attach significance to the fact that restrictions were imposed in a person’s best interests. It did however consider it relevant whether the person was in a ‘normal’ environment, for example whether one had social contacts, was living in a family or in an institution, and so forth.

One member of the Court of Appeal expressly rejected the suggestion made by the local authority that it was relevant to compare the alternative, historic arrangements for P and Q, which had been much worse for both, as they had been subject to neglect and abuse.

However, no concluded view was expressed on this issue by Wilson LJ, and Mummery LJ simply recorded that he had initially found the argument attractive but could see the danger that it risked conflating whether there was a deprivation of liberty with whether such deprivation of liberty was in the person’s best interests.

Wilson LJ concluded that P was clearly not subject to an objective confinement, and that Q’s case, although more borderline, also fell outside Article 5 due to Q’s "attendance at an educational unit, her good contact with such members of her family as were significant for her, and her other, fairly active social life". The other members of the Court of Appeal agreed with his analysis and conclusions.

Comment

The wait by practitioners for clear guidance from the courts about how to identify a deprivation of liberty appears set to continue for the foreseeable future: the Court of Appeal’s decision may be appealed to the Supreme Court, and, in the view of the authors, still leaves a number of questions unanswered.

First, it is not clear whether the Court of Appeal considered that the absence of factors that would point towards a deprivation of liberty (such as medication and attempts to leave a placement) actively weigh against other factors, or are simply an indication that the case falls towards one end of the spectrum. Secondly, it is unclear how a lack of objection by an incapacitated individual can be said to be relevant to the question of whether there is an objective confinement. While it is obviously true that where P objects to confinement, additional restraint and restrictions may well be needed, and that this will be relevant in determining whether there is a deprivation of liberty, it is far from clear that the reverse is true. Is deprivation of liberty about supervision, control, and absence of choice, or is it about locked doors, sedation, and physical restraint?

The authors tend to the view that in relation to people without capacity, it is the former, although the court appears to have concluded that supervision and control are likely to give rise to a deprivation of liberty only when they are exercised in an institutional setting. A locked door, or use of physical restraint may be a sufficient factor to demonstrate an objective confinement, but are they necessary components when considering the situation of people who do not have a normal capacity to assert their own independence? It might be said that the safeguards put in place by Article 5 ought to apply not just to those who have the capacity and/or temperament to cause a fuss. There are likely to be many examples where individuals without capacity may be oblivious to their circumstances, or unhappy but too miserable or too incapacitated to object. It is perhaps unsurprising that there is a reluctance to think that the concept of a deprivation of liberty could apply where individuals appear to be living relatively normal lives in the community, particularly when large and isolated institutions are a thing of the past. However, the importance of the procedural safeguards imposed by Article 5, whether through the court or through DOLS, is that they require proper thought to be given to less restrictive solutions, and provide a mechanism for independent scrutiny. It is arguable that accepting that an incapacitated adult is deprived of his or her liberty does not necessarily mean adopting a paternalistic or old-fashioned approach, but may in fact give substance to the person’s apparent autonomy.

The Court of Appeal said expressly that the decision was not influenced by ‘floodgates’ arguments and the risk that the courts would be inundated with applications requiring declarations sanctioning deprivations of liberty and the subsequent reviews required by Article 5(4), but it is easy to imagine such considerations being in play. A concern expressed by the government in the seminal Bournewood case was that if HL was deprived of his liberty, then so were many thousands of people in care homes and hospitals up and down the country. The end result was the introduction of Schedule A1, and it may yet be that the Supreme Court adopts a position which requires similar legislation to be introduced in respect of supported living placements.

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

Details

27.Apr.2011

Buckinghamshire County Council has failed to persuade the Court of Appeal to declare that a unilateral decision by the Royal Borough of Kingston-upon-Thames to move a woman with epilepsy into supported housing in its area was unlawful.

In Buckinghamshire County Council v Royal Borough of Kingston upon Thames [2011] EWCA Civ 457, the woman (SL) was a 36-year-old individual who also had learning difficulties. She came to the UK from Uganda in 1988.

Kingston Council arranged school placements for SL. In 1995 she was placed at a care home in Chalfont St Peter, Buckinghamshire, that was owned and operated by the National Society for Epilepsy (NSE). In 2004 she was moved to Hampshire House, another NSE care home in Buckinghamshire, with a view to giving her greater independence.

At an annual review conducted by Kingston in January 2009, she expressed a wish to move into “supported living with friends”. Policy in recent years has been to encourage disabled adults where possible to move from care homes into supported housing.

SL was then moved into a bungalow in Chalfont St Giles in Buckinghamshire, accommodation she shared with two other persons. The bungalow was owned by a registered charity, Zetetick Housing. The NSE meanwhile continued to provide care through its domiciliary care agency.

Kingston initially continued to pay for SL’s care following her move but in November 2009 it sought to transfer responsibility to Buckinghamshire. The county council resisted the proposal.

During the years that Kingston placed SL in the NSE’s care it had exercised powers under s. 21 of the National Assistance Act 1948. It remained liable to pay for her accommodation at the care home by virtue of the deeming provision in section 24(5), with SL having been “ordinarily resident” in the borough “immediately before the residential accommodation was provided for her”.

It was common ground that by moving to her own accommodation under supported housing arrangements, SL had become ordinarily resident in Buckinghamshire.

The county council accepted that the effect of Kingston’s decision to move SL was, if lawful, to make it responsible for arranging and funding SL’s community care provision. Buckinghamshire therefore applied for a declaration that the decision was unlawful. On 12 July 2010 Wyn Williams J refused that application.

Buckinghamshire appealed, arguing that Kingston had a duty to act fairly towards the county council when taking decisions about SL that would have significant and important consequences for it. The appellants complained that Kingston should have consulted with them before taking the decision, for example to allow them to provide relevant information on issues particular to its area. This would have led to a better informed decision, it was suggested.

This claim was refined to one that the respondents were in breach of their duties to SL in failing to consult or to notify the appellants about the decision they proposed to take in relation to her as service user. Performance of these duties comprehended a duty to consult the appellants, it was argued on Buckinghamshire’s behalf.

Giving the lead judgment, Lord Justice Pill said it was accepted that while primary care trusts, health authorities and the Secretary of State are given a status in the decision making process under section 47 of the National Health Service & Community Care Act 1990, no status was expressly conferred in that section on local authorities in the position of the appellants.

The Secretary of State had not given a direction under section 47(4) of the 1990 Act which bears upon a duty to consult the appellants and, in guidance under the section, the Secretary of State had not indicated that there should be such consultation, he added.

“In those circumstances, it is extremely difficult to find any legal basis upon which a duty of fairness to the appellants, in the form of a duty to consult them, when making a decision as to the placement of SL, can be established,” Lord Justice Pill suggested.

“The respondents are exercising powers in performance of a duty to SL. They do so in accordance with a statutory procedure. The role of the appellants, as potential payers for services, is essentially incidental to that process.”

The judge added that Kingston was not in a judicial or quasi-judicial position in relation to Buckinghamshire out of which a duty of fairness would arise. “They are performing, in accordance with statute, a duty to SL,” he added. “It is fairness to the service user which must be at the centre of decision making. Fairness to the appellants could arise only if performance of that duty requires a duty to consult the appellants.”

The judge said he could see no basis on which the court could create such a duty. “It would inevitably complicate the decision making process in relation to SL,” Lord Justice Pill suggested. “The obtaining of information from the appellants is one thing but, if the appellants were to have a status in the procedure, there would be a large potential for differences of view and for delay.”

There would also be a real danger that, in addition to delay, there would be satellite litigation between local authorities, he warned. “Cooperation in the obtaining of information is to be encouraged but an enforceable duty should not in my judgment be read into the procedure. If it were to be imposed, it should be created, and its scope defined, by statute or in plain directions from the Secretary of State.”

The Court of Appeal judge added that had Parliament intended to make provision for the protection of the financial or other interests of different authorities in the decision making process, express provision would have been made.

He added: “The good faith of the respondents (Kingston) in the decision making process has not been challenged in this appeal. If, in another case, it were to be established that the motivation for decisions under section 47 as to where to place service users was financial, different considerations would apply.”

Lord Justice Patten agreed with Lord Justice Pill. “It would, I think, be quite inconsistent with the purpose and structure of s. 47 to single out BCC and those in a similar position as justifying an elevated status of statutory consultee when the only avowed purpose of that is to ensure that the assessment is as accurate as it can be,” he said.

“They wish to act in effect as proxies for SL and to double check the assessment on her behalf. But there is no need for this. She can challenge the outcome for herself if she has grounds to do so.”

The judge added that Buckinghamshire assumed responsibility for SL when she moved to private accommodation in their area and could have carried out their own s. 47 assessment to resolve any issues between them and the local housing authority. “This and other factors which I mentioned earlier….point in my view decisively against the implication of the legal duty which is contended for.”

He added: “I also agree with Pill LJ that although good administration will doubtless be enhanced by a proper degree of communication between the outgoing and the incoming s. 21 authorities, that is insufficient in itself to confer on BCC the legal status which it seeks.”

Philip Hoult