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10.Apr.2012

The Supreme Court has given Westminster City Council permission to appeal a ruling on the circumstances in which social services departments owe a duty to provide accommodation and support to vulnerable adults in need of care and attention.

The Court of Appeal decision in SL v Westminster City Council [2011] EWCA Civ 954 was hailed by claimant solicitors as a very significant and helpful decision for many vulnerable people, particularly those with mental health problems.

However, Westminster insisted that the decision was wrong, saying it would look to take the case to the Supreme Court. It was given permission to appeal last month by a panel comprising Lady Hale, Lord Wilson and Lord Sumption.

The case centred on ‘SL’, an Iranian failed asylum seeker, who became homeless in October 2009.

In December 2009, after learning of the death of his partner in an Iranian prison, he attempted suicide and was admitted to hospital as an in-patient where he was diagnosed as suffering from depression and post-traumatic stress disorder.

SL argued that, on discharge from hospital in April 2010, he required accommodation and support from Westminster City Council social services.

Under section 21 of the National Assistance Act 1948, local authorities must make arrangements for the provision of residential accommodation for adults in need of care and attention which is not otherwise available to them.

The Court of Appeal overturned a decision by the High Court, ruling that the services SL was receiving from his mental health social worker amounted to ‘care and attention’ as his social worker was monitoring his mental state at weekly meetings and arranging for him to receive counselling and the services of a befriender, services he could not provide for himself.

Lord Justice Laws said ‘care and attention’ within the legislation was not limited to acts done by the local authority’s employees or agents. He added that the legislation also did not envisage any particular intensity of support in order to constitute ‘care and attention’.

The judge suggested that ‘care and attention’ is not ‘otherwise available’ unless it would be “reasonably practicable and efficacious to supply it without the provision of accommodation”.

Lord Justice Laws said it would be absurd for Westminster to provide a programme of assistance and support without also providing the “obviously necessary basis of stable accommodation”.

SL was granted indefinite leave to remain in the UK during the course of the case, which made him eligible for accommodation under the Housing Act 1996, but the Court of Appeal decided to hear the case because of its wider importance.

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28.Mar.2012

Chris Webb-Jenkins looks at the lessons to be learned from recent judicial review challenges to the decisions of local authorities when setting care home fees.

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22.Mar.2012

The sums involved may been small, but a recent Court of Appeal case on 'sheltered' accommodation is set to have a big impact on local authorities.

In Oxford City Council v John Basey (By his litigation friend Tarquin May) [2012] EWCA Civ 115 the Court of Appeal has determined that the Upper Tribunal (Administrative Appeals Chamber) had been entitled to find that a man with a severe learning disability resided in sheltered accommodation for the purposes of the Housing Benefit Regulations 2006.

It was not essential for accommodation to be self contained or to have a warden in order to be considered “sheltered”, the court said. He was found to be entitled to have his share of the costs of fuel for, and cleaning of rooms for common use included in his eligible rent when calculating his housing benefit. If Parliament had wished to introduce a distinction between supported and sheltered accommodation in the regulations it could have done so.

Facts

The claimant was a 64 year old man who had severe learning disabilities. He resided in a housing association property with three other tenants who had similar difficulties to himself. Each of the tenants of the property had their own bedroom and shared a kitchen, bathroom, two toilets, two sitting rooms and a further room. The tenants were provided with care, support and supervision 24 hours a day and for two to three hours this was on a one to one basis. The local authority determined that the claimant did not reside in “sheltered accommodation” for the purposes of housing benefit legislation as the property was not self contained and did not have a warden.

Discussion

The First-tier Tribunal concluded that the appellant did not reside in sheltered accommodation. The Upper Tribunal however, found that the First-tier Tribunal had applied an “unduly restrictive definition of sheltered accommodation” (paragraph 4) and reached the view that the accommodation was sheltered accommodation for the purposes of the regulations. The Court of Appeal then held that the Upper Tribunal had been correct.

“Sheltered accommodation” is not defined in the Regulations or any other statutory material concerning the housing benefit scheme. The Court of Appeal concluded that the type of accommodation the appellant resided in was sheltered accommodation for the purpose of the regulations as the Upper Tribunal had concluded. It was noted that Parliament had not chosen to define sheltered accommodation and “the Court should not impose a prescriptive definition upon an inherently flexible concept which can take many different forms, and which now includes very sheltered or extra care sheltered accommodation.” (Paragraph 33).

The Court placed types of accommodation along a spectrum with one end of it being accommodation which was “distinguishable from ordinary” accommodation because it incorporates particular features which are not normally found in “ordinary” accommodation and are designed to meet the needs of occupiers who are vulnerable in some way, often by reason of age, and increasingly by reason of disability.

“At the other end of the spectrum a care home is not sheltered accommodation. The occupiers of a care home may well need a greater level of care than is available in very sheltered accommodation - but the level of care may well be determined more by personal choice and/or availability or more probably lack of provision in a particular area.”

The sums in issue in this case were described by Lord Justice Sullivan as very modest. A total of £19.50 per week: £15.37 per week for fuel and £4.13 for cleaning. The Upper Tribunal were told however “that this was one of a large series of related appeals, and that its decision would affect very many other claimants in the area” of the local authority and other local authorities.

Vicki Silvester is a solicitor at Weightmans. She can be contacted on 0151 243 9853 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

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22.Mar.2012

Some local authorities have indicated that they did not and would not conduct equality impact assessments on their adult social care budgets, freedom of information requests carried out by the Afiya Trust have revealed.

The Trust received 118 responses from local authorities to its FOI requests, which were intended to determine whether public sector cuts are impacting disproportionately on BME families and voluntary and community groups.

Publishing an interim report earlier this month, the health charity said: “Whilst in some cases this appeared to be because the equality impact assessment was conducted corporately, in other cases the rationale for this approach was unclear and it was unclear whether or not the local authority was complying with the previous or current public sector equality duties.”

The research was conducted by the Trust as part of its Living in the Margins campaign. A full report will be published in the summer.

One in five of the responses did not declare whether equality impact assessments had been conducted. One in five authorities also said they did not collect data on the funding allocated to BME voluntary and community sector organisations, which the Trust described as “alarming”.

The FOI requests also found that the overall funding trend for BME voluntary and community sector organisations was down. The biggest cuts have occurred in Greater London, with 74% of local authorities there reporting cuts.

Around £3m was cut to BME voluntary and community sector organisations in social care funding in 2010/11. Half of this sum was in London.

Patrick Vernon, the Afiya Trust’s chief executive, said: “There is clear evidence that many local authorities are not delivering on their legal requirement as of part of the public sector equality duty to conduct equality impact assessments when making funding cuts that affect BME communities.

“This comes at a time when BME communities are experiencing one of the largest increases in health inequalities and one of the largest reductions in social mobility since the 1940s. Yet, from our initial findings, they are bearing a significant brunt of the cuts.”

The Trust called on the Department for Communities and Local Government to review the guidance to local authorities on best practice on funding cuts, and to ensure that “all local authorities undertake equality impact assessments with clear evidence that the impact on BME communities has been factored into all decision making processes and final council budgets”.

It meanwhile urged the Department of Health to develop a race equality strategy and action plan around the development and implementation of the Dilnot recommendations.

The Trust also called for personalisation to be implemented at 100% by all local authorities by 2013. “The Department of Health needs to conduct equality impact assessments through the implementation process to ensure that BME families, service users and carers are supported and benefiting from the autonomy that personalisation promotes,” it said.

The Trust also recommended that local government should:

• "Establish a network to support local authorities to develop best practice around race equality to minimise the impact of the cuts on BME communities;
• Develop best practice guidance to ensure all local authorities are carrying out the Public
 Sector Equality Duty;
• Establish a team of peer reviewers to support council leaders, elected Mayors, councillors and
 cabinet members to develop robust processes around the cuts and equality impact assessments, and to produce an action plan to support BME communities;
• Have a roundtable meeting between BME national and regional organisations and senior leaders in local government to develop a joint approach around localism and race equality."

At the metropolitan, county council and unitary level, the charity called for the production of an annual impact report on race equality. There should also be support for final council budgets and decision making processes based on robust equality impact assessments and engagement with BME communities and third sector organisations.

It also said there should a review of the impact of cuts on the implementation of the joint strategic needs assessment and the likely impact on BME communities.

Shadow health and well-being boards should assess the impact of cuts on BME communities and the 
level of disinvestment in BME third sector and grass roots community organisations, the Trust added.

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15.Mar.2012

The Court of Appeal recently examined the overlap between Article 8 ECHR (the right to family life) and the Mental Capacity Act. The Court of Protection team at 39 Essex reports on an important ruling.

In K v LBX & Ors [2012] EWCA Civ 79 the Court of Appeal was asked to determine whether ECHR Art 8 respect for family life requires the court in determining issues under the inherent jurisdiction or the Mental Capacity Act 2005 to afford a priority to placement of an incapacitated adult in their family or whether family life is simply one of “all the relevant circumstances” which under MCA 2005 S4 the court must consider.

The question arose in the context of a case in which the local authority, supported by the Official Solicitor, considered that it was in the best interests of a learning disabled young adult to move for a trial period into supported living.

The father strongly objected to the proposal (despite agreeing that independent living was a goal for the future) and argued that since there was no issue of neglect, abuse or other harm, the existing family life which L shared with his father and brother should not be disrupted.

The father relied on the oft-quoted comments of Munby J (as he then was) in the case of Re S [2003] 1FLR 292, as demonstrating that the court’s starting point should be that L would be better off remaining with his family:

“48. I am not saying that there is in law any presumption that mentally incapacitated adults are better off with their families: often they will be; sometimes they will not be. But respect for our human condition, regard for the realities of our society and the common sense to which Lord Oliver of Aylemerton referred in In re KD, surely indicate that the starting point should be the normal assumption that mentally incapacitated adults will be better off if they live with a family rather than in an institution – however benign and enlightened the institution may be, and however well integrated into the community – and that mentally incapacitated adults who have been looked after within their family will be better off if they continue to be looked after within the family rather than by the State.

49. We have to be conscious of the limited ability of public authorities to improve on nature. We need to be careful, as Mr Wallwork correctly cautions me, not to embark upon ‘social engineering’. And I agree with him when he submits that we should not lightly interfere with family life. If the State – typically, as here, in the guise of a local authority – is to say that it is the more appropriate person to look after a mentally incapacitated adult than his own family, it assumes,as it seems to me, the burden – not the legal burden but the practical and evidential burden – of establishing that this is indeed so. And common sense surely indicates that the longer the family have looked after their mentally incapacitated relative without the State having perceived the need for its intervention the more carefully must any proposals for intervention be scrutinised and the more cautious the court should be before accepting too readily the assertion that the State can do better than the family. Other things being equal, the parent, if he is willing and able, is the most appropriate person to look after a mentally incapacitated adult; not some public authority, however well meaning and seemingly well equipped to do so. Moreover, the devoted parent who – like DS here – has spent years caring for a disabled child is likely to be much better able to ‘read’ his child, to understand his personality and to interpret the wishes and feelings which he lacks the ability to express. This is not to ignore or devalue the welfare principle; this common sense approach is in no way inconsistent with proper adherence to the unqualified principle that the welfare of the incapacitated person is, from beginning to end, the paramount consideration.”

The local authority and Official Solicitor argued that there was no starting point or other gloss on the clear words of the MCA 2005 which simply required decision-makers, including the court, to assess all relevant considerations.

The Court of Appeal (Thorpe, Black and Davis LLJ) rejected the father’s appeal. Thorpe LJ observed (para 31) that “whether in cases involving children or cases involving vulnerable adults principles and generalisation can rarely be stated since each case is so much fact dependent.” The right approach under the MCA 2005 was to “ascertain the best interests of the incapacitated adult on the application of the section 4 checklist. The judge should then ask whether the resulting conclusion amounts to a violation of Article 8 rights and whether that violation is nonetheless necessary and proportionate.”

Black LJ pointed out that giving priority to family life under Article 8 by way of a starting point or assumption “risks deflecting the decision maker’s attention from one aspect of Article 8 (private life) by focussing his attention on another (family life)...there is a danger that it contains within it an inherent conflict, for elements of private life, such as the right to personal development and the right to establish relationships with other human beings and the outside world, may not always be entirely compatible with existing family life and particularly not with family life in the sense of continuing to live within the existing family home.”

Comment

This important decision clarifies the role of the court in MCA proceedings and confirms that starting points or other generalised approaches are not appropriate. In every case the particular facts must be scrutinised with care, and proper regard given to considerations under Article 8 ECHR. It remains the case that if any person proposes to interfere with a person’s family life, they will need to show good reason for doing so, but decision-making should not be fettered by the adoption of assumptions which are not reflected in the MCA.

The decision is to be welcomed for a number of reasons. It should ensure that proper recognition is given to the right to private life of adults who lack capacity. Concepts of autonomy and self-determination have not, for obvious reasons, featured strongly in cases involving children, and there can be a tendency to rely on the approach taken in family proceedings even though the MCA concerns adults. Promoting autonomy and self-determination are clearly of much greater significance in relation to incapacitated adults.

While there are no doubt similarities between the functions of a judge in family proceedings and in MCA welfare proceedings, adults are not children, and caution is required in drawing analogies between the two groups, or assuming that approaches relevant to one group can be translated to the other.

This article was written by the Court of Protection team at 39 Essex Street.

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08.Mar.2012

To what extent can care home providers act on residents’ behalf when bringing public law challenges? The Court of Protection team at 39 Essex Street report on a recent High Court case.

The case of Broadway Care v Caerphilly CBC [2012] EWHC 37 (Admin) – one of a string of recent cases arising out of attempts by local authorities either to cancel or vary the terms of contracts with residential care providers – is noteworthy because of a number of comments made as to the extent to which care home providers are entitled to act on behalf of the residents of their homes when seeking to bring public law challenges.

The claimant care home specialised in the provision of care to sufferers of dementia. It had 23 residents, of whom 19 were funded by the defendant local authority. By a decision dated 12 December 2011, Caerphilly CBC sought to terminate the framework contract for the provision of care services which the parties had entered in to in 2006 on the basis of concerns as to the quality of the care provision.

Upon the care home’s (rolled up) application for judicial review of the decision, HHJ Seys Llewellyn QC held that the Court should be willing to entertain applications for interim relief brought by a care home in a very unusual case, during such period as might be necessary to preserve the status quo until individual residents or their representatives can themselves pursue applications, if at all they choose to do so. Once there is time and opportunity for them to do so, there is plain risk of a conflict of interest between the care home and the residents and insufficient reason why the care home should purportedly act on their behalf.

However, the judge accepted the defendant’s submission that to acquire ‘victim’ status one must be ‘directly affected’ by the act or omission [1]. Those "indirectly affected" can only bring proceedings where, exceptionally, it is "impossible" for those directly affected to do so. On the facts, the claimant was precluded from pursuing the proceedings in defence of the Article 8 rights of its residents because it was not the victim of a breach of those rights.

The judge further rejected the claimant’s submission that the defendant was under a public law duty to consult with relatives before terminating the contract and reiterated that in the absence of a right to rely on the residents’ article 8 rights, there should be no public law remedy for termination of the contract.

Comment

This case is of note for the restrictive approach that the Court adopted to the circumstances in which a care home could pursue proceedings on behalf of its residents, even where on the facts the residents may be unlikely to bring proceedings in their own right. However, it does leave open the possibility of urgent relief being sought in an appropriate case so as to allow for individual residents to take their own steps to seek to safeguard their position and, as such, recognises the (limited) common cause that care home providers and their residents may have in securing the continuation of placement contracts.

This article was written by the Court of Protection team at 39 Essex Street.

[1] See e.g. Klass v Germany Application 5029/71, 6 September 1978.