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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.

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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.

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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.

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10.Nov.2010

A High Court judge has refused to extend an injunction restraining the Legal Services Commission from issuing new legal aid contracts for cases involving public law and mental health in high security hospitals.

The new contracts are due to commence on 15 November. Two firms, Public Interest Lawyers and RMNJ, have launched proceedings for judicial review of the LSC’s tenders. Nine other law firms – including Bindmans, Duncan Lewis and Pierce Glynn – are standing behind them.

Mr Justice Cranston declined to grant interim relief and to extend the existing injunctions. He ruled that the balance of convenience lay in favour of discharging those injunctions, noting in particular the effect on new entrants in mental health and public law.

The judge said firms that had been awarded contracts and made arrangements such as opening premises and taking on staff would suffer loss.

Mr Justice Cranston said although the two claimant firms had received significantly less matter starts than the amount they had bid for, they had been allocated enough to cover the period before the substantive hearing.

However, the judge did make a protective costs order (PCO) in favour of Public Interest Lawyers and RMNJ - this is believed to be the first time this has happened.

Setting the PCO at £100,000, Mr Justice Cranston acknowledged that the firms had a private interest in the proceedings. But he added that the firms supporting the litigation were prominent players in advancing public interest matters.

In particular, the judge regarded Public Interest Lawyers as “a surrogate for others who seek to advance the public interest through public law actions”.

“That being the case it seems to me that it devalues the work these firms undertake to describe their actions as primarily commercial,” he added. “It seems to me that private interest is not a major factor in the balance in this case.”

No date has been set to hear the applications for judicial review.

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10.Nov.2010

The Equality and Human Rights Commission is to examine the legal obligations of local authorities, care providers, the Care Quality Commission and central government as part of a major inquiry into the human rights of older people who need or receive home-based care.

The EHRC said that 81% of publicly funded home care is now provided by the independent sector, up from just 2% in 1992. It is estimated that more than a million older people currently receive such care.

The watchdog claimed that most independent providers are likely to be operating outside the direct reach of the Human Rights Act because they are not considered to be performing a “public function”.

Older people who receive home-based care are “acutely vulnerable to human rights violations”, the EHRC added, “yet the duties and responsibilities of those providing commissioning, funding or regulating the care and support system are far from clear.”

Sally Greengross, Commissioner at the EHRC, said: “Against a backdrop of budget cuts and public sector reform, local authorities are playing an ever-decreasing role as direct providers or funders of care and support, with the majority of older people receiving care from private and voluntary sector organisations or individuals.

“The complex web of provision has left older people and their families unclear whether and how their human rights will be protected. Equally, we believe those providing, commissioning or regulating care are unclear of their legal responsibilities and how to discharge them.”

The EHRC warned that, with older people and their families increasingly having to fund their care, there was a risk of care “being provided at the margins of, or even outside of, current regulations and beyond the reach of human rights obligations”.

The terms of reference for the inquiry include identifying:

• The extent to which public authorities are effective in protecting and promoting the human rights of older people , including those paying for their own services, in the initial and ongoing assessment of their needs, commissioning home based care and support and subsequent contract management
• Good practice in the promotion and protection of human rights of older people in home based care
• Public authorities’ understanding of their duties under the Human Rights Act in relation to promoting and protecting the human rights of older people requiring or receiving home based care and support
• The extent to which the legal framework for human rights and community care adequately protects and promotes the human rights of older people requiring or receiving home based care and support services
• The extent to which appropriate information, advice and advocacy is provided to older people directly purchasing home based care and support in order to protect and promote their human rights
• The extent to which inspectorate and regulatory bodies, including professional regulatory bodies, protect and promote the human rights of older people requiring or receiving home based care and support services and the extent to which it is appropriate for them to do so
• The scope for enhancing the role of inspectorate and regulatory bodies, including professional regulatory bodies, individually and collectively
• The extent to which people, including the families of older people requiring or receiving care and support, based on their experience, have confidence that the system will promote and protect their human rights.

The EHRC said its recommendations would be used to inform the practices of local authorities, regulators and providers of home based care, as well as the Commission's own work. The watchdog is also keen to influence the Independent Commission on social care reform and the independent Commission on a Bill of Rights.

The Inquiry will publish its findings and recommendations in December 2011.

Details

04.Nov.2010

The NHS Confederation has called on the NHS and local government to work closer together to provide social care, with its deputy director of policy warning that simply shunting costs from one part of the system to the other would be a “totally inadequate response” to the challenge of caring for elderly people.

Speaking at the National Children and Adult Services Conference yesterday, Jo Webber said the NHS and local government needed to join forces and change services in a bid to get “the maximum bang for every buck on behalf of service users”.

Webber acknowledged that the NHS Confederation and many people in local government were concerned about the impact of the current public spending round on social care.

“But the challenge of difficult financial times is one we simply have to prove equal to,” she said. “The answer will lie in ever closer working between local government and the NHS, a willingness to consider pooled budgets, innovations like telecare and the savings and improved co-ordination which personalised budgets can bring.”

Webber admitted that “none of this is going to be easy”, predicting that this winter was likely to bring the first real test of the impact the spending squeeze would have on the vulnerable and elderly, and the services they rely on.

She added: "Simply shunting costs from one part of the system will prove to be a totally inadequate response to the challenge of caring for elderly people.

“The only way we get the maximum bang for every buck on behalf of service users will be to work closer together and squeeze as much value as possible from the money available for social care."