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25.Oct.2011

The High Court is this week hearing separate judicial review challenges over two local authorities' planned changes to their adult care provision.

A claim against Manchester City Council began yesterday at the Civil Justice Centre in Manchester, while the Isle of Wight case started today at the Royal Courts of Justice. Both cases were expected to last two days.

Manchester had decided to cut its budget by £39m, which the claimants' lawyers – Irwin Mitchell – argued had left many people confused and worried over whether they would be eligible for care.

The claimants are a 72-year-old man who is paralysed on his left side, suffers from epilepsy and is reliant on others for his 24 hour care, and a 78-year-old woman who suffers from memory loss, a severe brain injury, degeneration of the spine and breast cancer.

They are facing the prospect of reductions to their care once the budget cuts are implemented, according to Irwin Mitchell. The law firm said thousands of disabled people would lose all or part of their social care packages if the cuts go ahead.

The law firm was expected to challenge the lawfulness of Manchester’s decision-making at the hearing, arguing that it had failed to follow government guidance.

Mathieu Culverhouse, solicitor in the public law team at its Manchester office, said: “We have asked the council to put on hold the implementation of these budget cuts and re-consider its allocation of funding once a lawful consultation process has been undertaken.

“This process should include the production of a lawful disability equality impact assessment which sets out the impact on disabled people of the budget cuts and a consultation which clearly sets out how the council proposes to implement any cuts.”

According to Culverhouse, Manchester had refused the request, leaving his clients with “no other option” than to launch proceedings.

A spokesman for the local authority said it would not be commenting on the case until judgment is handed down.

Irwin Mitchell is also advising the claimants in the Isle of Wight case. This challenge came after the council decided to adopt a new adult care eligibility threshold as of April 2012, under which it will only meet the care needs of either individuals with critical needs or those with substantial needs who are considered to be at greatest risk of not being able to remain at home safely.

Both claimants in this case are 32 years old and disabled, requring 24-hour care from their family and the authorities.

Alex Rook, Associate Solicitor at Irwin Mitchell, said: “The families of both the claimants in this case are extremely concerned about how the change in policy will affect them, as are many other people in the disability community.

“They are concerned that there are failures in the consultation process and a lack of clarity as to what the council’s position actually is. Though the council have accepted that some of the most disabled people in the Isle of Wight have had their services cut many wait to see how they will be affected. The court will hear argument on whether the change in policy and the budget cut decision by the Isle of Wight Council was lawfully made.”

Philip Hoult

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24.Oct.2011

Birmingham City Council has launched a procurement exercise for an £800,000 legal services framework for its adult and children division.

The scope of services to be provided under the 24-month contract includes:

• Adults’ law
• Children’s law
• Judicial reviews
• Residence cases
• Special guardianship
• Adoptions
• Immigration, and
• Disability

The local authority expects a maximum number of 10 participants to the framework agreement.

Birmingham is running the procurement alongside Improvement and Efficiency West Midlands. Other local authorities nationally will be able to opt into the arrangements throughout the contract duration.

The contract is expected to run from January 2012.

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11.Oct.2011

A 33-year-old disabled man has been given permission to apply for judicial review of Gloucestershire County Council’s refusal to give him more personal care.

Colin Bennett suffers from a degenerative condition called Friedreich’s Ataxia, which has left him almost completely paralysed.

According to his lawyers, the council’s refusal to give him more than nine hours of help per day means he has to spend long periods in soiled clothes and severe pain. Without help, he cannot get to the toilet or administer pain relief.

Bennett and his lawyers are also in dispute with Gloucestershire about his future accommodation. His current home is being shut down by the county council as part of its budget cutting, and he believes the alternatives are not suitable.

His Honour Judge Nicholas Cooke QC gave Bennett permission to proceed with the judicial review challenge at a hearing in the Cardiff Administrative Court on 30 September.

Bennett’s solicitor, Adam Hundt of law firm Pierce Glynn, said: “Colin is an intelligent man who is facing a lingering and painful death at a young age. He has coped incredibly well with his illness, but it is degenerative and has deteriorated badly over the last 12 months or so. Instead of increasing the amount of care he gets the council has kept it at the same level, leaving him in distressing and disturbing conditions that nobody should have to endure.”

According to a report on This is Gloucestershire, the council’s barrister, Barbara Hewson, told the hearing that Bennett received a direct payment to fund his care and he paid the carers to look after him.

“He chooses the structure of his care patter and the hours they work,” she told the judge.

Judge Cooke said: "I've not found this an easy decision but I've come to the conclusion that I should grant permission to have a judicial review. The county council has an argument but I'm not sure they're right."

He added: "Colin Bennett and his family must realise that the council's resources are finite."

The hearing is expected to take place in December.

Nigel Roberts, Director of Law & Administration at Gloucestershire, said: "When we receive the written judgment following the court proceedings, we will assess this carefully to determine our next steps."

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06.Oct.2011

The Court of Appeal has handed down an important ruling on the scope of a local authority’s discretion when proposing a placement pursuant to its duties to accommodate a child in need under the Children Act. The judgment has wide relevance, including to Court of Protection cases, argue Alex Ruck Keene, Victoria Butler-Cole and Josephine Norris.

In R (on the application of O) v London Borough of Hammersmith and Fulham [2011] EWCA Civ 925, O was a child with complex care needs due in part to his severe autism. O’s parents considered that O needed to reside and be educated in one location due to the difficulties he experiences with transitions from one environment to another. They identified an appropriate establishment, namely Purbeck View School in Dorset, but were prepared to consider similar alternatives. The local authority decided that O should attend a school near his home, Queensmill, and reside in a separate location. The residential placement initially proposed would be available for 38 weeks a year.

Proceedings for judicial review of the local authority’s decision as to O’s placement were issued on 11 February 2011. The decision was challenged on various grounds, including the ground that the only rational option was to accommodate O at Purbeck View School. A mandatory order requiring the local authority to accommodate O at Purbeck View was sought.

At first instance, the matter came before Blair J ([2011] EWHC 679 Admin). Mr Justice Blair accepted the submission put by Counsel for O that the standard of Wednesbury review was variable and that the case warranted an intense degree of review. On this basis, Blair J concluded that the decision was irrational as the local authority had placed too much weight on a decision relating to O’s education taken by the First Tier Tribunal two years previously and had placed insufficient weight on the conclusion of its own core assessment that there was a need to minimise transitions.

However, Blair J declined to grant the mandatory order on the basis that there were other options lawfully open to the authority. Blair J rejected an argument that local authority’s decision was a disproportionate and unlawful interference with O’s Article 8 ECHR rights or that in the alternative, the local authority was in breach of its positive obligations to promote the fulfilment of his Article 8 rights.

Both parties appealed this decision. In May 2011, prior to the appeal being heard, the local authority took a fresh decision and proposed a placement at Queensmill School with a residential placement at a children’s home in Croydon nine miles away which would be available 52 weeks per year. This was rejected by the parents. Rather than issuing proceedings for judicial review of the fresh decision, O’s legal representatives indicated that they would leave it to the Court of Appeal to resolve the issues, a procedural course which the Defendant opposed.

The matter came before the Court of Appeal for consideration of both permission and the substantive hearing if appropriate.

O’s appeal

Black LJ held that in essence O’s case was that the only way O’s needs could lawfully be met was through a placement at Purbeck View. If that were not accepted, all the grounds of challenge would fail. O had presented a powerful case supported by expert evidence. The local authority did not challenge the suitability of Purbeck View School but did not consider that it was the best way to meet O’s needs at present.

Black LJ concluded that “the difference of opinion between the local authority on the one hand and O’s parents and their advisors on the other as to what is required to meet O’s needs results from a different weighting of the various factors that must be considered. O’s parents give priority to avoiding anything other than the inevitable moves each day between living accommodation and educational provision and to the complete integration of care that can occur when a single establishment is responsible for a child. The local authority gives priority to maintaining O’s links with his locality and reducing the obstacles (non-existent in the family’s view) that geography might present to contact with his family.”

Accordingly she was not persuaded that Purbeck View was the only placement currently available that would meet O’s needs. The local authority’s proposal was another way of meeting his needs. Neither proposal could be rejected as misguided, impractical or inappropriate. The choice between the two proposals depended on how one weighed the various factors.

Further, where a local authority simply chose one way of meeting a child’s needs rather than another, it could not be said to have interfered with the exercise by the child or the parents of their right to respect for their private or family life. There was no breach of Article 8.

The local authority’s appeal

The local authority had sought permission to challenge the decision of Blair J on the ground that he had erred in holding that the decision under challenge was subject to a greater intensity of review (The Queen on the Application of L v Leeds City Council [2010] EWHC 3324 (Admin)). Black LJ refused permission to appeal. Whilst this was a difficult issue, it had not been fully explored and should be left until another day. The remaining issues were purely of academic interest.

Comment

Although this is not a Court of Protection case, it is a useful reminder of the breadth of a local authority’s discretion when proposing a placement pursuant to its duties to accommodate a child in need under the Children Act – a principle which is of wider relevance in the exercise of a local authority’s discretionary powers.

It further highlights the difficulties parties will encounter when arguing that there is only one rational option open to a local authority, even where there is substantial expert evidence in support of the preferred option, in cases where the local authority refuses to fund the preferred option, thereby circumventing the ability of the Court of Protection to influence its decision. Local authorities will no doubt be comforted by Blake LJ’s explicit recognition that in-house social services teams have important expertise in assessing the needs of children with disabilities.

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

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12.Sep.2011

A culture of disbelief has prevented public authorities from effectively tackling the harassment or abuse of disabled people, a report by the Equalities and Human Rights Commission has found.

The report, Hidden in Sight, said hundreds of thousands of disabled people regularly experienced harassment – whether verbal or physical abuse, theft and fraud, sexual harassment or bullying.

The watchdog said its inquiry had found “serious and systemic failings” in the way public authorities dealt with the issue.

The EHRC also cited evidence that perpetrators rarely faced any consequences for their actions, and victims continued to live in fear of harassment.

A series of recommendations centred on three areas: recognition; prevention; and redress.

In relation to recognition, the report said:

• senior managers "need to recognise this as an issue and show leadership";
• better information on the harassment of disabled people needs to be collected by all agencies; and
• a more positive attitude towards disabled people needs to be encouraged across society.

On prevention, the EHRC said:

• agencies must share best practice;
• staff should be given training and guidance on how to deal with disability-related harassment;
• research should be done into perpetrators and how to deter them.

When it come to redress:

• the criminal justice system “must become more accessible and responsive to disabled people”;
• police must routinely consider disability as a motive where a victim is disabled;
• victims must be better supported; and
• perpetrators brought to justice.

As part of its inquiry, the EHRC conducted a detailed examination of ten cases of severe abuse, nine of which resulted in the death of the victim. This found that some of the public bodies involved in the cases had been aware of earlier incidents of harassment, but had done little to stop further problems.

The authorities were often guilty of failing to share information. In five out of the 10 cases, there was no serious case review, which the EHRC suggested meant important lessons would not be learned.

The watchdog found that disabled people often did not report incidents “as it may be unclear who to report it to, they may fear the consequences of reporting, or they may fear that the police and other authorities will not believe them”.

Incidents were often treated in isolation, rather than as a pattern of behaviour. “There is often a focus on the victim’s behaviour rather than dealing with the perpetrators,” the EHRC added.

The EHRC will consult on its recommendations, before publishing a manifesto for change in the spring of 2012.

Mike Smith, lead commissioner and disability committee chair at the EHRC, said: “For me, two particular concerns come out of this inquiry. The first is just how much harassment seems to be going on. It's not just some extreme things happening to a handful of people: it's an awful lot of unpleasant things happening to a great many people. The second is that no one knows about it. When we were young we were told not to stare at disabled people. So no one has been.

“It's as though there is collective denial this could be happening, as if people are thinking 'we are supposed to feel sorry for these people, so why would anyone be deliberately horrible to them?' Maybe it just makes us too uncomfortable, thinking that might be the society in which we live.”

Smith said dealing with disability-related harassment would take concerted effort by a significant number of public authorities, with proper leadership and joint working at all levels.

“But it won't just be public authorities that have to act differently,” he added. “It's all of us. I want the person at the bus stop who sees something happening, or the plumber repairing a tap who comes across something untoward, to know that they too should take action.”

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07.Sep.2011

The Local Government Ombudsman has criticised a county council over faults in the way it handled the care needs of a young man with cerebral palsy.

The young man’s mother, Ms Crown, had complained that Worcestershire County Council had failed to provide them with advice, guidance or support with accessing direct payments to which they were entitled over several years.

Ms Crown claimed that as a result she struggled to meet his needs and there was considerable strain on the family. Her son is completely dependent on the 24-hour care she provides.

An investigation by the Ombudsman, Dr Jane Martin, found that there was no evidence of fault in the matter of providing direct payments to Ms Crown.

However, she did conclude that:

• the 2004 assessment of the young man’s needs was deficient
• reviews in 2006 and 2007 were not sent out to him or his mother for signature – “so they had no opportunity to challenge the council’s impression of their caring arrangements”, and
• carer’s assessments were not offered to the mother for three years between 2004 and 2006.

The LGO recommended that Worcestershire pay £9,000 to the mother “to reflect the lost opportunity for her to receive more support in caring for her son”.

The council has accepted the recommendation and will pay the sum on top of the £4,000 it has agreed to pay to reflect the son’s own suffering and inconvenience.

The Ombudsman said it would not have been appropriate for the remedy to be the refund of the direct payments Mr Crown might have received between 2003 and 2008.

“I say this because I cannot conclude with certainty that Mr Crown would have accepted direct payments for all or part of his care had his needs been assessed differently in 2004,” she said.

“Whilst I recognise that both Mr Crown and Ms Crown now say that they would have accepted direct payments for all of his care from 2003, I have to take into account the consistent assessment record that they were happy to continue with the arrangements and the fact that the 2007 carer’s assessment, which was properly conducted, did not result in the Council offering anything other than an additional period of respite care.”

Dr Martin said she was pleased to note that direct payments were now in place.

She added: “This young man’s mother has cared for her son over many years, whose best interests have been her foremost concern. I also recognise the considerable sacrifices she and her family have made.”

The LGO said the case highlighted how important it was “for local authorities to ensure these crucial services are properly managed”.