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04.Aug.2011

A local authority has failed to overturn an indemnity costs order handed down in a long-running case in the Court of Protection.

The case of Manchester City Council v G, E and F [2011] EWCA Civ 939 centred on E, who was born in September 1990 and suffered from tuberous sclerosis. He has associated physical problems and serious learning difficulties that cause significant social and communication problems. His expressive and receptive language skills have been assessed as those of an 18-24-month old child.

E came from a troubled family. He was first placed with F in respite care in 1995 and accommodated with her on a full-time basis under section 20 of the Children Act 1989 in 1999.

In the High Court Mr Justice Baker said it was “beyond argument” that E had been treated and regarded himself as a member of F’s family. However, on 7 April 2009 the council removed E and placed him in a residential establishment called the V Unit.

The principal cause of the removal was a report from E’s school that something E had said about “don’t lock the door” and mention of a wardrobe suggested that he might be sleeping in the wardrobe. There had also been an incident while E and F were on holiday, although there was considerable dispute about what had occurred.

On 11 June 2009 F was told E would not be returning home. On 15 June he was moved to another residential establishment, Z Road. His behaviour became of sufficient concern to administer drugs, including a very strong anti-psychotic drug.

F was not involved in decision-making about E after his removal, and was only permitted to see him five months later. In November 2009 G (E’s sister) filed an application in the Court of Protection.

“Extraordinarily” – in the words of Lord Justice Hooper in the Court of Appeal – Manchester took the position that its conduct in removing E from F in the way that it did was lawful. It only formally abandoned that position on day one of the main hearing.

Mr Justice Baker summarised in his costs judgment his findings in the main judgment (which followed a 7-day hearing):

• E lacked capacity to make a decision as to where he should live;
• The local authority in the area where he lived wrongfully deprived him of his liberty and infringed his rights under Article 5 of the European Convention on Human Rights by placing him on 7 April 2009 at the V Unit without seeking authorisation under the Deprivation of Liberty Safeguards and Schedule A1 of the Mental Capacity Act 2005 or an order of the Court of Protection; and by subsequently placing him at Z Road without seeking an order of the court; and
• The same local authority had infringed his rights under Article 8 of ECHR, when they placed him at the V Unit, by removing him from the care of F without proper authorisation; by further failing to give any or any adequate consideration to his family life with F at the time of the removal or for many months thereafter; failing adequately to involve F in the decision making process about E’s future, and restricting contact between E and F for several months after his removal.

The Court of Appeal cited the strong language used by the judge to describe Manchester’s failings: “blatant errors”, “lamentable”, “deplorable”, “grave” and serious”.

Mr Justice Baker concluded that the case was one in which he should depart from the general rule set out in rule 157 of the Court of Protection rules that there should be no order for costs.

The judge accepted that some form of investigatory process, almost certainly involving court proceedings, would have been required. However, he said the hearing would have been significantly shorter and the issues less complex if Manchester had followed the proper course of action in the case. In particular, the best interests analysis would have been less complicated than it was. G’s role would also have been peripheral.

Mr Justice Baker ordered that Manchester City Council should pay the costs of G, F and E, including pre-litigation costs, up to and including the first day of the hearing before him on 14 January 2010 on an indemnity basis.

The judge also said the local authority should pay one third of the costs of G, F and E from that day up to and including the hearing on 6 May 2010 on a standard basis. Costs were to be subject to a detailed assessment, if not agreed.

Manchester City Council appealed, arguing that the judge should not have departed from rule 157 and there should have been no order apportioning costs. Its counsel said that if that was wrong, then a limited order against the local authority was appropriate.

The Court of Appeal upheld Mr Justice Baker’s ruling. Giving the judgment of the court, Lord Justice Hooper said he agreed with various comments made by the judge, including that:

• a submission that local authorities would be discouraged from making applications if a costs order was made in this case was “a thoroughly bad argument”.  The opposite was in fact the truth
• It was only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of rule 159, that have reason to fear a costs order
• Local authorities who did their job properly and abide by the law had nothing to fear
• The Court of Protection recognised that professional work in this very difficult field often involved very difficult judgments and decisions. “The Court is not going to impose a costs burden on a local authority simply because hindsight demonstrates that it got those judgments wrong.”

Lord Justice Hooper said the judge had “rightly” rejected the argument that a costs order should not be made because the legislation was new and complex (and so large numbers of professionals at the council were uncertain as to the meaning of ‘deprivation of liberty’). The judge was also rightly of the view that Manchester’s actions in the case would have infringed E’s Article 5 and 8 rights under the old law as well as the Mental Capacity Act.

The Court of Appeal backed Mr Justice Baker’s finding that the costs of preparing for the issue of whether E should be permitted to return to F’s care were considerably enhanced by Manchester's actions. “In my view the judge was not only entitled to make that finding but driven to it,” Lord Justice Hooper said.

He added that Mr Justice Baker was entitled to reach the conclusion that Manchester’s conduct amounted to a “significant degree of unreasonableness” so as to give rise to liability for indemnity costs.

Lord Justice Hooper also backed the judge’s approach to costs in relation to the 6 May 2010 hearing.

Commenting on the ruling, Liz Bruce, Manchester City Council's Director of Adult Services, said: "We note the ruling of the court regarding the awarding of costs. As we said at the time of the original ruling, we strive to make good professional judgements and offer the best support to vulnerable adults and families we can, but this case illustrates how difficult a job that can be.

"We had to act after serious concerns were raised about this young man's welfare. It wasn't an easy decision to keep E in the home where he was receiving respite care, but his welfare was our primary consideration. While we stand by our decision to keep E where he was, the court made it clear in its ruling last year that we made serious mistakes in the way we went about it. We regret this and have now put in place measures so that in future similar cases we will follow the correct procedures."

Philip Hoult

Details

04.Aug.2011

Following the well known decision in JD v East Berkshire Community Health NHS Trust (2005), the High Court has rejected an attempt by a claimant to impose a duty of care on a social services department in circumstances where there was a conflict of interest between the claimant and his daughter. Rebecca Wilson explains why.

Facts

The factual background to the High Court case of Ahmad v (1) London Borough of Brent, (2) National Probation Service, (3) Ministry of Justice, (4) Parole Board for England and Wales (2011) was both complex and disturbing. The claimant had been convicted of murdering his 19-year-old daughter in 1991 in an "honour killing". He was sentenced to life imprisonment but was a model prisoner and was released in 2001 on licence. His licence contained certain conditions and in particular, that he should have no direct contact with his surviving 13-year-old daughter without the prior written authority of social services.

In due course supervised contact with the surviving daughter was allowed. However, in 2006 a social worker from the London Borough of Brent prepared a risk assessment detailing concerns she had regarding the claimant, including that he had been having contact over and above that which had been permitted in accordance with the licence. Following this, the probation service prepared a report to the prison service who revoked the claimant's licence. He was sent back to prison.

The claimant appealed to the Parole Board immediately. The Parole Board ultimately decided that the claimant's recall had not been justified and in particular, that he had not been having contact in excess of what was permitted by his licence. By this time the claimant had spent a year in prison.

The claim

Once released the claimant brought a claim for damages arising from his loss of liberty against all of the agencies involved.

The claim was brought in negligence, misfeasance in public office and for a declaration of interference with the claimant's right to private and family life, engaging Article 8 of the European Convention on Human Rights. As against the local authority it was alleged that the risk assessment prepared by the social worker was incorrectly prepared and led to the claimant's wrongful recall to prison. It was alleged that the social worker owed a duty of care to provide accurate information to the other agencies, that the social worker was reckless as to the information that went into the risk assessment and that this ultimately caused him to lose his liberty.

Strike out

All three defendants applied to strike out the claim, in a hearing before Mr Justice Supperstone in the High Court which lasted an exceptional seven days.

In JD v Berkshire, the Court of Appeal set out the principle that when investigations into child abuse are being undertaken by a local authority, whilst they owe a duty of care to the child to act reasonably, there is no duty of care owed to the parents.

In Ahmad the judge found that the primary duty of the local authority was to protect the surviving daughter from the claimant and ensure she did not suffer the same fate as her sister. Following the authority of JD, there was no question of a duty of care being owed to the claimant by the local authority. The judge also found as a matter of fact that the claimant had exceeded the contact permitted by his licence. The claim in misfeasance was struck out as having no reasonable prospect of success.

The claim under Article 8 of the Human Rights Act failed on the grounds that there was no interference by London Borough of Brent with any Article 8 right because they had not taken the decision to recall the claimant. The claims against the other defendants were also struck out save for one discrete issue as against the Ministry of Justice.

Comment

The immunity granted to local authorities has been under attack, most notably in C v Merthyr Tydfill (2010) where the Court refused to strike out a claim by a mother against a local authority. So, it is welcome to report a case where the Court has followed JD.

It also provides a good example of when it is appropriate to apply to strike out a claim. Although the hearing in this matter lasted for a lengthy seven days, it prevented a much longer and extremely costly trial. Whilst an application to apply to strike out a case is not always appropriate, it is worth considering, particularly in a factually unattractive case such as this: the court will not have a natural desire to compensate the claimant where the claimant is undeserving. A strike out is particularly desirable in social services matters where the claimant often has the benefit of LSC funding and recovery of costs will not be possible in any event.

Rebecca Wilson of Barlow Lyde & Gilbert LLP acted for the London Borough of Brent. She can be contacted on 020 7643 7289 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

Details

03.Aug.2011

Volunteers, childminders and care workers will no longer have to be licensed as minicab drivers under new guidance issued by the Department for Transport.

According to the DfT, the introduction of the Road Safety Act 2006 saw some councils class such groups as minicab drivers. The Act repealed an exemption from private hire vehicle (PHV) licensing for vehicles used on contracts lasting not less than seven days.

The DfT published guidance at the time of the repeal but it has since been concluded by In-House Policy Consultants that there were too many ‘grey areas’ “where local authorities simply did not know whether or not certain vehicles should be licensed”.

The new guidance sets out which vehicles the government believes need minicab licences – and those that do not. The following groups will be exempt from having to license their vehicle:

• Private ambulances, “including emergency vehicles and vehicles which operate as part of a formal patient transport service”
• Volunteers who share their car or provide lifts as part of their voluntary duties
• Care and support worker services, “including those who care for adults in their own homes, in community settings or in residential or nursing care homes”
• Childminders who carry children as passengers as part of their duties;
• Rental car companies and garages offering ‘courtesy lift’ services for customers, “for example whilst their car is in for repair”.

The DfT said the guidance would remove “the burden on local authorities of licensing vehicles unnecessarily”.

Transport Minister Norman Baker said: “Clearly parents helping out at a play group, or carers getting people to the doctor are not minicab drivers. I hope that by publishing this new guidance today these people will be able to get on with their vital activities, without the hassle or cost of getting a minicab licence.

“Councils will also benefit by cutting out unnecessary paperwork which wastes valuable time and money.”

Colin Angel, Head of Policy and Communication at the UK Homecare Association, said it welcomed the Department for Transport guidance.

“It is an unnecessary burden to ask homecare workers to apply for a minicab licence,” he added. “We hope that councils will agree that these infrequent trips help elderly and disabled people maintain their independence and quality of life, and are not a cab service.”

Details

01.Aug.2011

The Equality and Human Rights Commission (EHRC) has unveiled an online resource about human rights to help public sector bodies in England and Wales and organisations carrying out public functions and advocacy.

The resource covers nine areas: adult social care; children's services; health; housing; education services; local government; criminal justice; courts and prisons; policing, and immigration and asylum.

The EHRC has also outlined a number of common and recurring themes from the guidance “that should be applicable to everyone”: They are:

• Positive obligations: “The Human Rights Act means that all public authorities have an obligation to ensure that people's rights are respected in all that they do”
• Human rights as an aid to decision making: “Human rights principles can strengthen decision-making at both corporate and service levels and help to prevent service failure,” the EHRC said. “Human rights can provide an important 'check and balance' – helping to determine proportionate action, especially where the interests of different parties conflict”
• Proportionality: “The principle of proportionality is at the heart of a human rights framework,” the Commission argued. “This can be summarised as 'not using a sledgehammer to crack a nut'. It ensures that any restriction of a person's human rights is kept to a minimum”
• Assessing and managing risk: “Human rights can be used to ensure that risk management practice is lawful, balances the interests of all those involved, and is proportionate,” the EHRC said. Human rights can be infringed when public authorities are excessively risk averse as well as when they fail to act to prevent risk, it added
• User and public involvement: “The inclusion of service users, is an essential part of a human rights based approach”
• Equality and good relations: “Viewing equality issues through a human rights lens can help to shift the emphasis from negative compliance to positive cultural change”
• Building a human rights culture: “Leadership, senior level commitment and engagement, and effective training in human rights principles and practice are fundamental to any organisation committed to compliance with the Human Rights Act.”

The EHRC’s 29 pieces of guidance bring together learning materials about the human rights obligations of the public sector and how to successfully implement them. “These materials include tried and tested examples of how to consider human rights in public service delivery as well as case studies, informal guidance, inspection standards and impact assessments,” it said.

The Commission has also included materials on supporting the human rights of particular groups such as older and disabled people and refugees and asylum seekers.

There are summaries of each publication to highlight the key human rights messages and other essential information. These were produced by the Human Rights and Social Justice Research Institute at London Metropolitan University.

Philip Hoult

Details

14.Jul.2011

Complaints to the Local Government Ombudsman have soared by more than 20% in the last 12 months, the watchdog’s annual report has revealed.

The LGO said there were 21,840 complaints and enquiries dealt with at the initial point of contact in 2010/11 – a rise of 21%. This translated into 11,249 complaints being forwarded to the Ombudsman’s investigation teams, up 7.5%.

The annual report, which predicted that this upward trend would continue, reveals that the sector currently providing the greatest number of complaints is education and children’s services, with 15% more than in 2009/10.

Adult social care complaints are also rising rapidly, up almost 50% on the previous year to 974. Those concerning special educational needs also increased. On the plus side, complaints about planning have reduced.

The LGO issued 25 reports during the year in cases where there was maladministration causing injustice. Redress was meanwhile obtained or recommended in 2,474 cases, or just over a quarter of all complaints determined. This percentage is broadly in line with 2009/10.

There were seven applications for permission to seek judicial review over an Ombudsman’s decision. None were successful, save for one case where the court’s decision is still awaited.

The last 12 months have seen the LGO’s remit expanded. The Ombudsman can now hear complaints from adults who arrange or fund their own care, rather than just local authority complaints in this area. This means they now have jurisdiction over all registered care providers. In the six months to 31 March 2011, the LGO received 75 complaints under this new jurisdiction.

The LGO has also been empowered to hear complaints from pupils or their parents about schools. However, this only applies at the moment to schools in 14 council areas. Nevertheless, the LGO received 169 complaints during the year, mostly about bullying, teacher conduct and special educational needs.

Dr Jane Martin, one of the Ombudsmen and Acting Chair of the Commission for Local Administration, predicted that the pressures on public services in the current financial climate would lead to additional demand for the LGO’s service.

“This is linked to potential growth in demand for our service as a result of public spending reductions and an increase in complaints about privately funded or arranged adult social care,” she said.

Dr Martin added: “As Local Government Ombudsmen, we provide an important mechanism for local public accountability. We have continued to develop our service to ensure that, as well as providing redress for individual citizens, lessons from complaints are used to improve local public service delivery and benefit the wider community.”

As well as publishing its annual report, the LGO has also sent annual review letters to every local authority in England. These summarise the complaints the Ombudsmen received about each council.

Philip Hoult

Details

04.Jul.2011

National eligibility criteria and portable assessments should be introduced to ensure greater consistency and fairness in adult social care, the Dilnot Commission on Funding of Care and Support has recommended.

In its Fairer Care Funding report, the Commission also called for the government urgently to develop a new, more objective assessment scale as the basis for the future system.

The report said the current adult social care system was not fit for purpose and needed urgent and lasting reform. Its other key recommendations include that:

• Individuals’ lifetime contributions towards their social care costs – which are currently potentially unlimited – should be capped. After the cap is reached, individuals would be eligible for full state support. The Commission said the cap should be between £25,000 and £50,000, but it considered that £35,000 was the “most appropriate and fair” figure;
• The means-tested threshold, above which people are liable for their full care costs, should be increased from £23,250 to £100,000;
• All those who enter adulthood with a care and support need should be eligible for free state support immediately rather than being subjected to a means test;
• Universal disability benefits for people of all ages should continue as now. The government should consider how better to align benefits with the reformed social care funding system. Attendance Allowance should be re-branded to clarify its purpose;
• People should contribute a standard amount to cover their general living costs, such as food and accommodation, in residential care. A figure in the range of £7,000 to £10,000 a year would be appropriate;
• In the short term, it is reasonable for a minimum eligibility threshold to be set nationally at ‘substantial’ under the current system;
• To encourage people to plan ahead for their later life, the government should invest in an awareness campaign;
• The government should develop a major new information and advice strategy to help when care needs arise. This should be produced in partnership with charities, local government and the financial services sector. The Commission backed the Law Commission’s proposal for a statutory duty placed on local authorities to provide information, advice and assistance services in their areas. “These should be available to all people, irrespective of how their care is funded or provided”;
• Carers should be supported by improved assessments which take place alongside the assessment of the person being cared for and which aim to ensure that the impact on the carer is manageable and sustainable. The Commission supported the Law Commission’s proposals to give carers new legal rights to services and improve carers’ assessments; and
• In reforming the funding of social care, the government should review the scope for improving the integration of adult social care with other services in the wider care and support system. “In particular, we believe it is important that there is improved integration of health and social care in order to deliver better outcomes for individuals and value for money from the state.”

The report urged the government both to implement its reforms and ensure there is sufficient, and sustainable, funding for local authorities. “Local authorities will need to be able to manage existing pressures as well as the new requirements resulting from our reforms,” it warned.

“The Commission recognises the government’s commitment to social care in the latest spending review settlement; however, the impact of the wider local government settlement appears to have meant that the additional resources have not found their way to social care budgets in some areas,” the report said.

It added that the resources made available locally for adult social care each year should be transparent. Any periodic review of local government financing should also have regard to the importance of the sustainability of funding for adult social care.

The Commission, led by economist Andrew Dilnot, said its proposals would cost the state around £1.7bn. The report also calculated that no individual would lose more than 30% of their assets, and predicted that new financial services products would emerge to offer people further protection of their assets.

In a letter to the Chancellor of the Exchequer and the Health Secretary, Dilnot argued that extra state resources would be required in this area if greater private resources were to be unlocked.

“Without the state taking on some of the risk, individuals will be unable to use their assets effectively and the involvement of the financial services sector will remain limited,” he said.

The report outlined how demand for social care is significantly outpacing expenditure, with the gap increasing year on year. Dilnot said the issue of funding for adult social care had been ignored for too long.

“We should be celebrating the fact we are living longer and that younger people with disabilities are leading more independent lives than ever before,” he said. “But instead we talk about the ‘burden of ageing’ and individuals are living in fear, worrying about meeting their care costs.

“The current system is confusing, unfair and unsustainable. People can’t protect themselves against the risk of very high care costs and risk losing all their assets, including their house. This problem will only get worse if left as it is, with the most vulnerable in our society being the ones to suffer.”

Dilnot claimed that under the Commission’s proposed system everybody who gets free support from the state now would continue to do so and everybody else would be better off.

“Putting a limit on the maximum lifetime costs people may face will allow them to plan ahead for how they wish to meet these costs,” he argued. “By protecting a larger amount of people’s assets they need no longer fear losing everything.”

A copy of the full report can be downloaded here.

Philip Hoult