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11.Nov.2011

The High Court has quashed a local authority’s decision to freeze the fees payable to care home providers in 2011/12.

It was the second year running that Sefton Council had decided there should be no increase.

The claimant care homes in The Sefton Care Association & Ors, R v Sefton Council [2011] EWHC 2676 had challenged Sefton’s decision on seven grounds, although these did not include irrationality.

His Honour Judge Raynor QC found in favour of the claimants. He concluded that Sefton had:

• in fixing the fees in December 2010, “failed adequately to investigate or address the actual costs of care with the claimants (and the other providers), and thereby failed to have due regard to the same” contrary to guidance and certain provisions of the Building Capacity and Partnership in Care agreement
• failed to have due regard to local factors relevant to the costs of care, such as local pay levels and property costs
• failed in its duty properly to engage in proper consultation with the providers.

However, the judge rejected the claimant’s contention that Sefton had also failed to comply with the general equality duty under s. 49A of the Disability Discrimination Act.

He agreed with the council’s submission that “if the assessment of the usual cost of care is unimpeachable (i.e. undertaken in accordance with the requirements of the 1992 Directions and the statutory Guidance and the Agreement) then there is no further need for the defendant to consider the public sector equality duty when fixing its fees.”

A spokesman for Sefton Council said: “This judgement provides welcome clarification around the difficulties of making such important decisions in such a short period of time. The judgement does not say that we have made the wrong decision. It is merely critical of some elements of the process we went through. The proposal not to increase fees for care homes has not been criticised.

“This has been a very complicated legal process. It shows that the speed at which we needed to make cuts last year has meant we did not consult with care home providers early enough about the possible freeze in their fees. We accept that.”

The Sefton spokesman said that “given more time”, it could have had further discussions with care providers.

“We have already learned lessons” he insisted, adding that as part of this year’s budget process the authority had launched a significantly larger consultation around the options facing councillors.

The spokesman pointed out that Sefton had had to make budget reductions totalling £65m “this year and last”.

He added: “A large part of our budget spend is on this type of care and we have to get the best possible value.

“The judgement actually recognised our consideration of the balance, between the level of care people should expect, and the appropriate cost to the council tax payer. It has also shown that we have given proper regard to equality in our decision-making."

The spokesman said the council would now use the guidance laid out in the judgement as a way forward in further discussions with care providers.

Philip Hoult

Details

11.Nov.2011

A local authority’s plans to implement cuts to its adult care provision were left in tatters today after the High Court ruled the policy drawn up was unlawful.

The Isle of Wight Council had intended to adopt a new eligibility threshold in April 2012, when it would only meet the care needs of either individuals with critical needs or those with substantial needs who were considered to be at greatest risk of not being able to remain at home safely.

However, Mrs Justice Lang quashed the policy on the grounds that:

• The policy itself was unlawful in that it was contrary to government guidance. It also did not comply with the Isle of Wight’s own internal guidance on how to assess the impact of the policy
• The council failed to have regard to the need to promote disability equality under s. 49A of the Disability Discrimination Act 1995 when setting the policy.

The judge also said that the consultation was flawed in that it “provided insufficient information to enable those consulted to give intelligent consideration [of the proposals] and an intelligent response”.

The local authority said it accepted the decision of Mrs Justice Lang and would not be appealing.

The case was brought by law firm Irwin Mitchell on behalf of two disabled men – JM, who has severe autism and brain damage, and NT, who has a-typical autism and a learning disability. The claimants, who are both 32 years old, require 24-hour care from their family and the authorities.

Irwin Mitchell lawyer Alex Rook said the judgment would provide clarity for thousands of disabled people on the Island who stood to lose all or part of their social care packages under the proposed changes.

He said: “Naturally our clients’ families are delighted that the High Court has quashed the council’s policy.

“The judge has ruled that the consultation the council undertook did not involve proper consideration of the practical detail of what the move to this new policy would entail even were it lawful, and the council had very little information about the impact that this would have on people’s lives before it when it took this decision.

“The reality is that the council simply did not know what the effects would be – other than how much money would be saved – and so the court has declared the council also to be in breach of its obligations under the Disability Discrimination Act.”

In a joint statement Cllr David Pugh, leader of the Isle of Wight Council, and Cllr Roger Mazillius, cabinet member for adult social care, housing and community safety, said they were “naturally disappointed with this decision, having genuinely sought to undertake a thorough and proper process of consultation”.

The councillors said the authority had been required to make substantial budget savings within a short timeframe, while at the same time protecting those who were most vulnerable and in need of support.

“We also had to look to the future and position ourselves to face the demographic and financial challenges that the coming years will bring,” they added.

Cllr Pugh and Cllr Mazillius said the Isle of Wight would now spend time reflecting on the implications for both service users and the wider council budget before deciding on the next course of action.

“Throughout this process we tried to ensure that the methods used to consult and the content of that consultation would be understood by residents,” they argued.

“We worked closely with a range of representative community groups to compile the consultation literature and tried to create the right balance between sharing information and not overwhelming people with too much complex detail. We also allowed a full 90-day period for people to consider the proposals and make their response.”

But they accepted Mrs Justice Lang’s decision that the council did not provide sufficient information and that, in its attempts to explain what was a complex decision, "the authority unintentionally breached some elements of the guidance".

The councillors added: “We will immediately comply with the judge’s ruling and return to the previous eligibility threshold whilst we consider our next steps. We will not be appealing the decision.”

Isle of Wight staff will not make contact with the 32 services users directly affected by the changes and offer them a reassessment of their needs.

The council had anticipated saving £2.5m through the changes to eligibility thresholds and charging. It warned that it faces a £33m funding gap as a result of cuts to government funding, inflation and increased need.

The Isle of Wight case was the latest in a series of legal actions over local authority changes to eligibility thresholds and cuts to adult care services.

Birmingham City Council’s changes  were also held to be unlawful, but challenges to the proposals of Manchester City Council and Lancashire County Council were unsuccessful.

Philip Hoult

Details

10.Nov.2011

The Court of Appeal has upheld an appeal by a local authority in a landmark ruling this week on what constitutes a deprivation of liberty.

The case of Cheshire West and Chester Council v P [2011] EWCA Civ 1257 centred on a 39-year-old man (P) who was born with cerebral palsy and Down’s Syndrome. He presented with significant physical and learning disabilities.

It was accepted by all parties that P lacked the mental capacity to make decisions as to his care and residence. He lived with his mother until 2009 when her health began to deteriorate. P was placed at a local authority establishment and then moved in November 2009 to Z House, where he currently lives.

P had a long history of challenging behaviour, with continence management a particular problem.

Staff at Z House used a variety of techniques to deal with this. One involved the use of an all-in-one body suit sewn up at the front. The aim was to stop P tearing off parts of his continence pads and ingesting them, which posed hygiene and health risks. Staff used “finger sweeping” to remove any material ingested in this way.

The Official Solicitor, acting as P’s litigation friend, was concerned at the restrictive measures needed to deal with P’s more extreme behaviours and that these might amount to a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights (the right to liberty).

At the High Court Mr Justice Baker declared in April 2011, pursuant to section 16 of the Mental Capacity Act 2005, that it was lawful and in P’s best interests that he continued to reside at Z House.

In a reserved judgment published on 14 June 2011, the judge also declared that P’s care plan at Z House did involve a deprivation of liberty.

The council responsible for P’s community care needs and for accommodating him, Cheshire West and Chester, appealed on this issue.

The Court of Appeal has now found in favour of the local authority, concluding that there was no deprivation of liberty.

Lord Justice Munby said what was at stake was whether P was entitled to the important procedural protections of Article 5(4) and, in particular, to the regular ongoing reviews of his detention (if such it be) mandated by Article 5.

In his ruling the Court of Appeal judge brought together “some aspects of the jurisprudence which are likely to be of significance in the kind of cases that come before the Court of Protection”.

These were:

1. “The starting point is the ‘concrete situation’, taking account of a whole range of criteria such as the ‘type, duration, effects and manner of implementation’ of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not nature or substance.
2. Deprivation of liberty must be distinguished from restraint. Restraint by itself is not deprivation of liberty.
3. Account must be taken of the individual's whole situation.
4. The context is crucial.
5. Mere lack of capacity to consent to living arrangements cannot in itself create a deprivation of liberty
6. In determining whether or not there is a deprivation of liberty, it is legitimate to have regard both to the objective ‘reason’ why someone is placed and treated as they are and also to the objective ‘purpose’ (or ‘aim’) of the placement.
7. Subjective motives or intentions, on the other hand, have only limited relevance. An improper motive or intention may have the effect that what would otherwise not be a deprivation of liberty is in fact, and for that very reason, a deprivation. But a good motive or intention cannot render innocuous what would otherwise be a deprivation of liberty. Good intentions are essentially neutral. At most they merely negative the existence of any improper purpose or of any malign, base or improper motive that might, if present, turn what would otherwise be innocuous into a deprivation of liberty. Thus the test is essentially an objective one.
8. In determining whether or not there is a deprivation of liberty, it is always relevant to evaluate and assess the 'relative normality' (or otherwise) of the concrete situation.
9. But the assessment must take account of the particular capabilities of the person concerned. What may be a deprivation of liberty for one person may not be for another.
10. In most contexts (as, for example, in the control order cases) the relevant comparator is the ordinary adult going about the kind of life which the able-bodied man or woman on the Clapham omnibus would normally expect to lead.
11. But not in the kind of cases that come before the Family Division or the Court of Protection. A child is not an adult. Some adults are inherently restricted by their circumstances. The Court of Protection is dealing with adults with disabilities, often, as in the present case, adults with significant physical and learning disabilities, whose lives are dictated by their own cognitive and other limitations.
12. In such cases the contrast is not with the previous life led by X (nor with some future life that X might lead), nor with the life of the able-bodied man or woman on the Clapham omnibus. The contrast is with the kind of lives that people like X would normally expect to lead. The comparator is an adult of similar age with the same capabilities as X, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations as X. Likewise, in the case of a child the comparator is a child of the same age and development as X.”

Lord Justice Munby also sought to emphasise a further point. “The fact that a domestic setting can involve a deprivation of liberty does not mean that it very often will,” he said.

“Indeed, typically it will not. In the kind of context with which we are here concerned – the care of children or vulnerable adults – there will normally be no deprivation of liberty if someone is being cared for by their parents, friends or relatives in a family home. Nor, I should add, will there normally be any deprivation of liberty if they are in a foster placement or its adult equivalent or in the kind of small specialist sheltered accommodation of the type occupied by MEG [in the case of MIG and MEG].”

The judge said there might be cases – “though one would hope only rarely” – where the Court of Protection would have concerns about whether something is being done for some improper purpose or with some improper motive.

“Such cases apart, I would hope and expect that the Court of Protection will be able to deal with most cases of this type fairly but at the same time simply and quickly,” Lord Justice Munby added.

The judge said many of the cases coming before the Court of Protection would fall fairly obviously into the category of care by parents, friends, relatives, foster placements and specialist sheltered accommodation “and can thus be dealt with quite quickly on the basis that there is no deprivation of liberty”.

He said: “At the other end of the spectrum there will be cases such as HL v United Kingdom (2004) 40 EHRR 761, DE v JE and Surrey County Council [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, and London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP), where it should not take too long to determine that there is a deprivation of liberty. The more difficult cases, and, I would hope, the only ones that may need more protracted investigation, are those in the middle of the spectrum.”

Turning to the appeal in P’s case, Lord Justice Munby said a fundamental problem was that Baker J “never compared P’s situation in Z House with the kind of life P would have been leading as someone with his disabilities and difficulties in what for such a person would be a normal family setting.”

The judge, he added, “never grappled with the question whether the limitations and restrictions on P's life at Z House are anything more than the inevitable corollary of his various disabilities. The truth, surely, is that they are not. Because of his disabilities, P is inherently restricted in the kind of life he can lead.”

Lord Justice Munby added that P’s life, wherever he might be living, was dictated by his disabilities and difficulties. “There is nothing to show that the life P is living at Z House is significantly different from the kind of life that anyone with his concatenation of difficulties could normally expect to lead, wherever and in whatever kind of setting they were living,” he said.

“On the contrary, as Baker J himself recognised, there is, using the phrase in its correct sense, a ‘strong degree of normality’ in P's life at Z House. Normality, that is, assessed as it must be by reference to the relevant comparator.”

The Court of Appeal judge added that the fact that P could not go anywhere or do anything without the support or assistance of staff at Z House – a key element in Baker J’s view that indicated there was a deprivation of liberty – was the reality inherent in and dictated by his various disabilities.

“It is not something imposed on him by Z House,” Lord Justice Munby said. “There is nothing to show that P would not require the same kind of ‘support and assistance’ wherever he was living and in whatever kind of setting. Plainly he would.”

Lord Justice Munby added that the measures applied to P from time to time were far removed from the physical and chemical restraints found, say, in mental hospitals. “They are, in truth, the kinds of occasional restraint that anyone caring for P in whatever setting – for example, his own mother if he was still living at home – would from time to time have to adopt.”

The Court of Appeal judge said matters such as the body suit and finger sweeping to remove materials in P’s mouth were not capable of tipping the balance and should not be given the weight ascribed by Mr Justice Baker.

On the body suit, Lord Justice Munby said: “One could just as well argue that a small child because he has to live where his parents determine, is deprived of his liberty if, as a baby, he is strapped into a buggy or, as an older child, is strapped into a car seat”.

The finger sweeping, though obviously intrusive, had to be looked at in context. “It is little different from what any properly attentive parent would do if a young child was chewing or about to swallow something unpleasant or potentially harmful,” the judge said, adding that the only difference in P’s case was two people were needed to do it.

Lord Justice Munby said this degree of restraint was far removed from anything that began to approach a deprivation of liberty. “Restraint must be distinguished from deprivation of liberty,” he said. “In extreme cases restraint may be so pervasive as to constitute a deprivation of liberty, but restraint by itself is not deprivation of liberty.”

Lord Justice Munby concluded that P’s situation was far removed from cases such as HL v United Kingdom, DE v JE and Surrey County Council, and London Borough of Hillingdon v Neary.

The concrete situation in which P found himself at Z House was instead very much closer to the concrete situation of MEG [in the MIG and MEG case], who was living in a rather similar type of placement.

“At Z House and outside it P is living a life which is as normal as it can be for someone in his situation,” the judge said.

Philip Hoult

Details

10.Nov.2011

Criminals – including some based outside the UK – are using transparency information that councils publish on their websites to defraud public bodies, the Audit Commission has warned.

Describing this type of fraud as an emerging risk, the watchdog said the fraudsters were using data – such as details of key creditors – "to mislead and to redirect payments to and from public bodies".

“The fraudsters have sent letters to council finance teams that appear legitimate and often follow them up with phone calls to chase payments,” the Audit Commission said.

In the Commission’s annual survey, Protecting the Public Purse, councils revealed several detected frauds of this type worth £7m. Controls – such as greater sharing of information and awareness of risk – had helped prevent a further £20m in attempted fraud, the report.

The watchdog said that, overall, councils in England detected a total of £185m in fraud over the year – a third more than in 2009/10 (£135m). However, its chairman, Michael O'Higgins, warned that this could be “the tip of the iceberg”.

Some 121,000 scams took place in areas such as benefit claims, procurement, council tax discounts and unlawful subletting of social housing.

Key findings from the report included that more than half of councils outside London failed to recover a single property during the year even though social housing fraud – worth at least £900m a year – is the largest category of fraud loss across local government.

A total of 1,800 homes were recovered after tenancy fraud, up 75% in three years. However, the vast majority of these properties are in London.

The watchdog also revealed that in 2010/11:

• Councils uncovered 145 cases of procurement fraud involving losses of £14.6m during the 12 months – a 400% rise. The report said councils were “vulnerable to a range of [procurement] frauds such as cartels skewing bidding processes, contractors providing shoddy goods or services, inflated performance claims and false invoicing”. Losses in individual cases could be large – two cases in 2010/11 were worth a total of £6m.
• There was more than £22m worth of false claims for student and single person council tax discounts. Single Person Discount Fraud is estimated to cost £90m each year. Investigations by Bristol City Council uncovered widespread abuse of Student Discount, with 34% of a sample of 4,500 exemption applications proving to be fraudulent, worth £1.9m
• There were 59,000 cases of housing or council tax benefit fraud valued at £110m. In the last three years councils have detected almost 210,000 cases of benefit frauds worth more than £310m

The Audit Commission also sought for the first time to track care budget fraud, which it said was hard to detect.

This exercise revealed that there were 102 cases of proven social care budget fraud worth over £2.2m, or an average of £21,000 per case. The watchdog said direct payments for adult care increased the recipient’s choice and control, but could be exploited by fraudsters.

O'Higgins said: “Councils are certainly acting on fraud, and it is now firmly on the government agenda. But our latest survey of detection rates shows that we may be seeing just the tip of a very large iceberg.

“Our research shows high rates of council tax discount fraud and widespread unlawful occupancy of council houses. Now, for the first time, we are also able to publish details of fraudsters targeting care payments to the elderly and vulnerable. Also scams involving fraudulent student council discounts and fraud that goes to the heart of councils' multi-million pound procurement budgets.”

O'Higgins added that councils needed to do more in particular to tackle housing tenancy and procurement frauds.

He said: “In these tough times councils need to maintain the strongest possible anti-fraud defences to safeguard jobs and services.”

Philip Hoult

Details

10.Nov.2011

Should the Court of Protection be more open as some sections of the media have suggested? Lucy Series examines the debate.

The Court of Protection hears cases about some of the most excluded and silenced people in our society. It is surely a good sign that the media, MPs and campaigners are sufficiently concerned about their plight that they take such an interest in this court's new jurisdiction under the Mental Capacity Act 2005.

As Amelia HIll has written in The Guardian this week, the new Court of Protection came into being in 2007; the primary difference between this Court of Protection and the 'old' Court of Protection is a jurisdiction to hear matters of care and welfare. According to the most recent Court of Protection report, the vast majority of the court's workload is taken up with property and affairs matters; fewer than 2000 of the 23,000 cases the court heard last year concerned welfare and care matters.

Nevertheless, it is these cases that capture the imagination of the public and the media. Rightly so. Amelia Hill is right to draw attention to the types of sensitive and controversial issues that fall within the court's jurisdiction: whether a person should continue to live with their family, or be removed from their care; levels of contact with family members in the presence of allegations of abuse; matters relating to sexuality like whether a person should be allowed to have sex, whether a person should be given contraception or be sterilised, whether a person should have an abortion; matters relating to medical treatments, including the power to coerce medical treatments and surgeries against a person's resistance, etc etc. This court deals in the most intimate and personal matters in a person's life. The question The Guardian has taken up, as other media outlets have before, is whether the court should be more open to ensure the decisions it makes are subject to proper levels of scrutiny and debate.

I have written quite a bit on this before and my primary contention has been that the general rule that identities should be protected and information in the public domain should be subject to court imposed restrictions is appropriate and promotes justice. I echo the words of Fenella Morris quoted in The Guardian: "It seems to me there's an unfairness in saying that if you lack capacity, you don't have the right to the same level of privacy and dignity as the rest of us." However, I believe there should also be a general rule that written judgments are published for every case (particularly care and welfare cases), and that unless there is a very good reason (given in the judgment) any public authorities involved should be identified.

On the question of media attendance of hearings, I would be interested to know how many hearings the media have actually been refused access to. From the sounds of what journalists tell me, the process for applying to attend a hearing is costly and involved; I'm sure improvements could be made and I'd like to see what recommendations they propose. But I'm not sure a general rule of an open court would promote justice.

The media have tended to be involved in cases where families have sought them out and desired that they attend; I doubt that the majority of families involved in Court of Protection proceedings would want this. The biggest concern would be that a full media gallery would have a chilling effect upon applications to the Court of Protection, and drive these decisions further underground away from even the scrutiny of the courtroom.

What I feel many in the media and family justice movement have failed to understand, is that before the Mental Capacity Act 2005 created the Court of Protection these kinds of decisions – around sexuality, medical treatments, family life – were still being taken, but without any kind of judicial oversight. They were taking place in staffrooms, far from the eyes of either the law or the media, and only rarely did anybody seek judicial authorisation for controversial decisions like removing somebody from their family or forcing medical treatments upon them. Only rarely would a family manage to challenge a decision they disagreed with. The Mental Capacity Act 2005 hasn't just magicked up a whole range of new practices that interfere with liberty and family life; it has attempted to impose the rule of law on coercive practices that were already occurring, and offer families an appropriate route to challenge them.

The deprivation of liberty safeguards are another example of where the court's new powers to detain a person in their best interests impose the rule of law on practices that were already – are already – occurring throughout the country on an unscrutinised, unmonitored, and unchallengeable basis. In the limited amount the deprivation of liberty safeguards have been reported upon, the media have tended towards the view that "more deprivation of liberty authorisations = bad".

This couldn't be further from the truth. In all seriousness, what did they think the DoLS have changed? Do they think the care homes and hospitals have suddenly started detaining a whole population that they didn't before? The truth is that these people were already detained, and they were detained without any legal framework to reduce its arbitrariness and guarantee them a right to appeal. The issue the media should be concerning themselves with is not that the courts have new legal powers to deprive people of their liberty; but that people up and down the country are currently deprived of their liberty without any legal powers at all.

I was interested that in a separate interview with The Guardian Sir Nicholas Wall: “...used the interview to discuss the court's controversial deprivation of liberty safeguards, which allow council or NHS officials to restrain someone in a hospital, care home or retraining facility for as long as the state deems it to be "in their best interests".

At present, these powers are only available to judges sitting in the high court in London. Wall, however, revealed his support for broadening the remit to include circuit and district judges, with a consultation launched in the next month.

"If we are at the stage where case law has been established, then we can gradually work our way towards having people outside London who are competent in the work of the court of protection, acting as judges," he said.

Care and welfare proceedings in general, and the deprivation of liberty safeguards in particular, are said to be causing significant problems within the Family Division of the High Court, through diverting judicial resources away from their normal business of family cases without any increase in resources. It is no wonder that Sir Nicholas Wall, then, would want these cases to be heard by circuit and district judges. I would be interested to see what the consultation finds though, as the case law seems to me to be far from 'established' - in the DoLS at least. Only a few weeks ago a high court judge refused to rule on whether a person was deprived of their liberty or not, because the case law was so unclear. Perhaps that will change when the Cheshire ruling comes out though.

I also wanted to take issue with a few comments made by John Hemming on the Court of Protection, reported in The Guardian. First, he says, the "secrecy" of the process – which can extend to families being ordered not to complain to their MPs about cases in progress – undermines the fundamental principle of British law that justice must be both done and seen to be done.

It strikes me that Hemming is seeking to conflate issues he regularly campaigns on in family justice matters with the Court of Protection. Indeed, that may be why the article cites the case of Rachel Pullen as a Court of Protection case, when – although it did concern issues of mental capacity – it was surely primarily a family court case concerning her children. I've never really known what evidence Hemming bases his contention that the family courts are ordering families not to complain to their MP upon, but I would absolutely astonished if this was occurring in the Court of Protection. I challenge him - and media outlets that reproduce this claim - to provide evidence that a Court of Protection judge has even once ordered a family not to complain to their MP.

The second problem, [Hemming] says, is the use the court makes of single experts to sum up all the evidence presented, instead of a range of experts giving varied opinions. Instead, Hemming wants disputes dealt with under a tribunal system, where people who are detained may appear in person instead of having decisions taken on their behalf by the official solicitor, on the advice of a single expert.

I have to say I find this argument absolutely laughable. One of the key differences between the Court of Protection and tribunal systems is surely that such a range of experts and other witnesses are called upon. That is precisely why Court of Protection cases are lengthy, costly and involved, and why it would be hard to deal with them under a tribunal framework.

It is my contention that the 'best interests' framework under the Mental Capacity Act 2005 has significantly shifted the balance of power away from 'single expert' justice, because it covers such a range of issues. Unlike many other areas of law, the Court of Protection judges absolutely do not defer to the authority of medical experts, or single experts. In fact one of the things that is striking about cases like W v M (the case of the minimally conscious woman whose family sought to allow her to die) is the range of voices heard that would normally be ignored in the courts. Baker J heard evidence not only from medical authorities, but also Occupational Therapists, Physiotherapists, care home managers and even ordinary care staff - not to mention family. And all their views were accorded respect and considered in his judgment. Take another case on litigation capacity, V v R [2011], the court heard evidence from a psychiatrist, a neuropsychiatrist, two neuropsychologists and the claimant's mother. This is a far cry from the 'single expert' view that Hemming paints, and I'm not really sure what kinds of cases he is referring to.

As for the idea a tribunal system would be better - does Hemming mean a tribunal system like the one used in mental health? The one so 'secretive' that the media and 'transparency' campaigners have all but forgotten to campaign about it? The one where Albert Haines had to fight to have his case heard in public, and where - even so - the hospital sent their PR officer to sit in on his interview with the Independent (I'm sure it was his best interests they were looking out for there...). Talk about secret justice - where are the published judgments for those cases then? And this system covers far, far more people. It's true that tribunals are more 'accessible' in certain respects than the Court of Protection, but that doesn't mean they offer a better guarantee of justice. There is research that suggests that the mental health tribunals do not treat patients particularly fairly, that they discredit the views of patients, and that they defer excessively to medical opinion. They have to do this, in my view, to get through so many cases so quickly; the difficulty with not having a strict hierarchy of expertise is that you have to listen carefully to everybody's view - and that takes time.

I agree with Hemming that there are issues in the way litigation capacity is managed in England and Wales; I'd like to be more convinced that the mechanisms for restoring legal capacity are robust. I'd like to see the people at the heart of these cases more involved in the court proceedings. But I'm really not sure on what grounds he thinks a tribunal system will help. Court of Protection cases are lengthy and involved mainly for the reason I've just pointed out: they don't just defer to the opinion of a single expert, they do take the views of family and P themselves seriously, and they balance a whole range of factors beyond the medical. The single biggest threat to justice in my view is the lack of resources to enable the court to continue to do that.

Lucy Series is a researcher in the University of Exeter’s School of Law, specialising in human rights law and community care. Lucy can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it. . Before becoming a legal researcher, she worked in mental health and social care settings for many years. Her blog can be read here.

Details

27.Oct.2011

The Court of Protection and Office of the Public Guardian Office’s fee arrangements are placing a greater burden on local authority budgets. Julia Lomas looks at what can be done.

In these tough economic times, many local authorities find themselves hard-stretched to match budgetary resources with their responsibility to fulfil the needs of various vulnerable groups as guided by the Court of Protection.

However, many may not realise how, through seeking specialist legal advice, they can take a steps towards ensuring these needs are met in the best possible manner.

This article looks at how a positive, cost-effective outcome can be achieved when councils work with the private sector to share the responsibility of making applications to the Court of Protection regarding their clients.

It is perhaps fair to say that the ability of local authorities to deal with such issues can vary. While some have sophisticated arrangements and highly-trained staff to deal with applications, many others tend to organise them on a much smaller scale and on an ad-hoc basis. These variations are reflected by the fact that the staff responsible for such matters often sit in different departments from one authority to another, with some based in finance and others in social services.

However, one thing that they all have in common is that the increased costs of the Court of Protection and Office of the Public Guardian Office’s fee arrangements means there is a potentially increased burden upon the local authority budgets for application and other related fees. Is there something that can be done about this?

A lot of these applications relate to elderly residents in care homes who have lost the capacity to manage their property and affairs. In many of these cases, where there is no suitable family member to assist in such matters, the responsibility falls on the local authority.

Despite this, many councils are reluctant or simply unable to do anything but a basic application, lacking the skills or resources to do more than apply to appoint a Property and Affairs Deputy. However, the problem with this is that applications often involve so much more than taking over the client’s bank accounts and pension.

Sometimes, there is a need to put a charge on or sell a property, while there may also be suspected financial abuse that needs to be investigated and dealt with. In addition, there are occasions when the client, having lost the capacity, needs a new or updated Will which can only be dealt with through the Court of Protection while, inevitably, there will be the probate following their death.

As all of these matters largely fall outside of the usual skills of a local authority legal department, there is a clear scope for councils to consider a more streamlined system to assess a client’s assets and identify the services they need, as well as to unlock a client’s funds and ensure that they can be utilised to provide a quality standard of living for the rest of his or her life. Through this system, the local authority can also simultaneously fulfil its duties and release funds to pay outstanding care bills, particularly if they are able to identify a “one-stop shop” service provider in the private sector with no cost to themselves.

It must be remembered that local authorities need to act within their statutory framework and in accordance with the Best Value principles established by the Local Government Act 1999 (“LGA”), which state that local authorities must make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness. This principle is made even more relevant given the current precarious economic climate. Where a local authority fails to meet its statutory obligations it can result in direct action being taken against the authority by the Secretary of State.

An application for the appointment of a Deputy, as well as the ongoing management of a Deputyship, can be complex and, in some cases, requires a high level of expertise. Given the statutory obligations and financial restrictions under which local authorities have to work, it can be argued that the instruction of a firm of solicitors to deal with such applications and ongoing Deputyships is a way of the local authority securing continuous improvement in the way in which it exercises its functions. This would also, unquestionably, have a positive impact on the economy, efficiency and effectiveness of the local authority’s functions, thus ensuring compliance with the Best Value principles.

The local authority will be required to undertake due diligence to ensure that the solicitor who is instructed is competent to act but, unlike many other types of legal services, there is no Law Society Panel for this type of work.

Legal aid is also not available for Property and Affairs Deputyship application – unlike Welfare Deputyship applications – but the hourly rate of the solicitor is not self-set and is governed by the Court of Protection rates based on location and grade. They are also subject to assessment by the Senior Court Costs Office, except in such cases where fixed fees are elected to be taken. This should go a long way to helping the local authority when carrying out its due diligence enquiries, particularly if coupled with a Court of Protection Panel Deputy – i.e. one approved to act on cases passed directly from the Court of Protection.

This leads us to the question of how solicitors and local authorities can work together for the good of the client and their mutual financial benefit. In my own experience, it has been common for the local authority to take a “commissioning” role, which sees key people co-ordinating the collation of information and passing this to their service provider of choice. Not all cases will be cost effective for the service provider, but if the flow of work is sufficient, this can and should be absorbed as a loss leader.

As with any good working relationship, there needs to be advantages to both sides.

For the local authority, the benefits are tangible – the applicant solicitors should be asked to put up the application fees if the client is not exempt and should then carry that cost until the order allows access to funds, thus easing the burden on local authority coffers. It will also lead to swifter payment of outstanding care bills which are to be settled by deputies, a more strategic and streamlined use of existing resources, better and faster cash flow and, finally, the knowledge that they have fulfilled all of their statutory duties to the client, meaning they avoid any unpleasant potential breach of duty claims.

In terms of benefits for the service providers, they will receive payment for their court-assessed work and will find that many of the legal needs of the client will also fall to them, such as a house sale or the need to put in place an updated and valid Will. Finally, they would also potentially deal with the probate after the client has passed away, hopefully after enjoying the best possible standard of living that their funds allow.

Julia Lomas is a partner and the National Head of the Court of Protection Department at Irwin Mitchell LLP. She spent the first 16 years of her career in local government, becoming Borough Solicitor to the London Borough of Haringey and Head of Legal Services. Julia has also been the Public Trustee and Chief Executive of the Public Trust Office, the government agency which was the forerunner of today’s Office of the Public Guardian. She can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it..