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29.Jun.2011

At least 110 local authorities will be allowed over the next two years to use community budgets to deal with families with multiple problems, the Deputy Prime Minister has announced.

Speaking at the Local Government Association conference, Nick Clegg claimed that up to 120,000 families would see a significant improvement in services as a result. The move follows the success of 16 pilot areas, he said.

The Deputy Prime Minister called on councils to sign up to the scheme. Around 50 councils will get community budgets this year, followed by at least a further 60 in 2012/13.

The Department for Communities and Local Government said families with multiple problems accounted for less than 1% of the population, but were seen by as many as 20 different public and voluntary sector professionals at a cost of £4bn a year.

It cited the case of one Salford family that required “250 interventions in one year including 58 police call-outs and five arrests; five 999 visits to Accident and Emergency; two injunctions; and a Council Tax arrears summons”.

Putting in place a community budget saw the £200,000 cost being cut by two thirds, the DCLG said.

Nick Clegg also announced at the LGA conference that four new community budgets pilots would be launched “to explore how communities can have greater control over services through a single budget from Whitehall, as part the government's review into local government finances”.

Two areas will be selected to help co-design neighbourhood level community budgets, “giving residents the opportunity to say what services they want, how they should work and whether they want to run them”.

Another two will be selected to help co-design a community budget bringing all funding on local public services from the area “into a single pot to test how to create the right local financial set up to deliver better services that people want”.

The Deputy Prime Minister said: "In terms of real decentralisation, money talks. We need to reverse decades of centralisation to make our communities masters of their own economic destinies. We have to create the conditions for communities to invest in their own success. That means putting our money where our mouth is to give local authorities proper power over spending as well as more control over the taxes raised and keep so, for example, they can fight to attract businesses to come to their area.

"We will also be putting community budgets at the heart of how we deliver services. There are families that have been let down by the system. Their complex problems mean they can end up seeing dozens of professionals across public services - but those professionals aren't always joined up, making it near impossible for anyone to get an overall picture of what that family needs. Community budgets are budgeting for real life, breaking down the barriers between different parts of the machine, and treating people with troubles like human beings, not figures on a spreadsheet."

Clegg also revealed that the DCLG would introduce a Local Government Finance Bill handing councils the freedom to borrow against business rates, known as Tax Increment Financing, and to retain business rates.

The first phase of the Local Government Resource Review is considering options to enable councils to retain locally raised business rates. It is expected to report in the summer. A second phase set out by the DCLG deals with community budgets and starts this week.

Communities Secretary Eric Pickles said: "It makes no sense that 120,000 families cost the country £4bn because inefficient public services are duplicating work. Community budgets will radically change that by giving local councils and communities control over how public money spent in their area is used.

"We are extending the reach of community budgets so that more local services across the country work in partnership to knock back the bureaucratic processes that box them into working alone."

The government said nine centres or 'Dissemination Hubs' would be based within local authorities around the country to provide practical support to neighbouring areas in developing services for families with multiple problems.

“Whitehall officials will be assigned to help areas 'bust' financial and legal barriers to achieving local ambitions by pooling budgets, changing working practices and investing in service reorganisation,” it said.

Sir Merrick Cockell, LGA Chairman, said giving local areas greater control over the delivery of services to families with complex needs saved money and improved lives.

“Momentum is building behind this approach,” he suggested. “Pilot councils have demonstrated that it can work and with the extension of the scheme we are very confident that more will match and even exceed early successes.

“We do need much greater buy-in from all government departments if the next round of councils are to more easily overcome some of the hurdles which stand in the way of the huge savings and greater local accountability this approach can deliver. We estimate up to £100bn in taxpayers’ money could be saved over the life of the current parliament if place-based budgets were introduced everywhere.

“The LGA will work with councils to maintain momentum within the sector and with government departments to ensure they continue to devolve budgetary control in a way which promotes true localism.”

A recent report by the CLG select committee said there was “palpable enthusiasm” for community budgets in the DCLG and praised the Department for Health for its enthusiasm.

However, the MPs warned that ministers in the Home Office and the Department for Work and Pensions gave the impression of being barely aware of how they might contribute to such an initiative. As a result there was a risk of the concept becoming a damp squib, they said.

Philip Hoult

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21.Jun.2011

The Local Government Ombudsman has attacked Bristol City Council for failing to take sufficiently robust action in relation to an elderly woman’s care, despite receiving a large number of serious safeguarding alerts.

It is the second time in under a week that a local authority has been sharply criticised by the Ombudsman over the provision of a poor standard of adult care.

The LGO last week attacked the London Borough of Bromley for “extraordinary and inexcusable” delays in reviewing the care of an elderly man who had been living in a home outside the area.

In this latest report the Ombudsman said Bristol had failed over a four-year period to monitor whether a placement for the elderly woman in a residential care home was meeting her needs.

Dr Jane Martin, the LGO, said she was particularly troubled in view of the number of serious safeguarding alerts the council had received during the time the woman was a resident. “Had more robust action been taken by the council, then the poor standard of care and treatment she received may have been detected far sooner,” she suggested.

The case related to the care of Mrs J, an elderly lady with dementia who required 24-hour care. The cost of her placement in the residential care home in Bristol was partly met by the council and partly out of her own funds.

In 2008 the Care Quality Commission – or the Commission for Social Care Inspection, CSCI, as it then was – rated the care home as a zero. The complainant’s son, Mr J, said that the standard of care his mother received during this period of time was poor and of great concern to the family. However, Mr J was not informed of the zero rating by the local authority.

Mr J eventually felt it was necessary to move his mother to alternative accommodation – identified by the family – following a “particularly appalling” incident at the care home in December 2008.

The cost of the placement at the new care home was more than the council would usually expect to pay, and Mr J felt he had no other choice than to make a ‘third party contribution’ to the cost.

Mr J complained to Bristol about the poor standard of care at the initial care home, the lack of support and advice he had received from the council about moving his mother to another placement and the financial contribution he had made for the new placement.

Bristol launched an investigation, which found that Mrs J had not had her personal care needs met for a number of months and that this had impacted negatively on her health and wellbeing. But the report concluded that Bristol had taken appropriate action to safeguard Mrs J.

The local authority’s report recommended a number of improvements to procedures which included informing relevant individuals when care homes had been zero rated. The council also apologised for its shortcomings and provided Mr J with a copy of its action plan to improve services.

The LGO concluded that there was maladministration in the council’s reviewing and safeguarding strategy, and expressed concern about the poor communication between the council and the family. She also decided that Bristol had not properly considered the circumstances around Mrs J’s move to an alternative placement, which had led to Mr J contributing to the cost.

Although the authority’s investigations did reveal faults, it appeared that the responsibility for the poor standard of care had been attributed directly to the care home.

The LGO concluded that, as the commissioner of the service Mrs J received, Bristol was responsible for the poor service received. It had failed to carry out adequate reviews and had delayed undertaking a series of monitoring visits (despite having instigated a placement ban). Had various measures been in place, the incident in December 2008 might have been prevented.

The maladministration had led to both Mr and Mrs J being caused significant distress, she added.

The local authority has told the Ombudsman that it has implemented further procedural improvements to address the difficulties highlighted in the LGO’s investigation and has agreed to review its action plans in light of the report.

Bristol has also agreed to:

• provide an apology for the faults identified in the LGO’s report
• make a payment of £500 to Mr J in recognition of the distress he has suffered and his time and trouble in pursuing the complaint
• pay financial compensation to Mr J equivalent to any contributions that he made towards his mother’s care costs for the period February 2009 to October 2009 in recognition of the failings that led to the move to a new care home, and
• make a further financial award to Mrs J of £6,000 in recognition of the council’s failings in providing a suitable standard of care and in failing to protect her under its safeguarding procedures.

Philip Hoult

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16.Jun.2011

The High Court recently quashed Birmingham City Council's attempt to change its eligibility criteria for adult care. In the first of a two-part series, Linda Walker looks at what the ruling means for local authorities.

The challenges that local authorities face when making decisions about identifying savings and cutting services was brought to the fore recently in a case involving Birmingham City Council – R (on the application of W) v Birmingham City Council: R (on the application of M. G and H) v Birmingham City Council (2011) – where the Council attempted to change the eligibility criteria in respect of adult care services. In a well-publicised ruling, Mr Justice Walker found that Birmingham City Council had breached its duty under the Disability Discrimination Act 1995, to give proper consideration to the impact on disabled people when it decided to restrict adult care services to those whose needs were “critical” - that is, the most severely disabled.

This meant that anyone whose needs were classified as “substantial” would no longer have social care services paid for by the Council. This affected an estimated 5,000 vulnerable people who would have lost their care provision. The significance of the case for other councils should not be underestimated. Where cost-cutting initiatives have adverse effects on vulnerable groups and proper consideration is not given to the effects of proposed changes, there is the potential for legal challenges to delay, or even prevent the councils making their proposed changes. Whilst it is a time-consuming process, following procedures scrupulously to avoid breaching equality duties is essential.

However, it is not just about the breaching of the equality duty. Councils need to take great care over the consultation process itself, an aspect to be explored in the next article.

As we know, Government policy has at its core the need to make savings in order to reduce the budget deficit. Councils are therefore being forced to reduce or reconfigure the number and range of services that they provide. This throws up the potential for equality duties to be overlooked and the needs of a wide range of groups not to be addressed as a result. Apart from the social consequences that this may throw up, there is also likely to be a significant longer term cost and potential for more legal challenges like the one against Birmingham.

Public sector bodies are required under equality legislation to consider equality duties when assessing the impact of changes to policy and spending. For example, authorities must have due regard to the elimination of unlawful discrimination and harassment, promotion of equality of opportunity and the need to take steps to take account of disabled persons’ disabilities. The fact that these equality considerations apply, does not mean that changes in services cannot be made, but they do require that these be fully appreciated, both individually and holistically.

This latest judgement makes it clear that there is a need to clearly assess and analyse the practical impact on those whose needs are affected by cuts or changes in eligibility criteria. In cases where the decision may affect large numbers of vulnerable people, many of whom fall within one or more of the protected groups, the due regard requirement is very high, and requires analysis of all of the information with specific statutory considerations in mind. That is to say that a conscious approach to their specified needs. Unfortunately for Birmingham, the Council had not given proper consideration to the impact on disabled people of their cuts and had failed to adequately consult on its proposals.

It was made clear in the judgement that general awareness of their duty is not enough, there must be a “substantial rigorous and open-minded approach” to the process of cutting services. Further, the duty may require positive steps to be taken if the circumstances require it to address disadvantage to disabled people. This means that if a risk of adverse impact is identified, measures to avoid that impact must be considered before committing to a particular solution.

It is essential that a rigorous impact assessment is carried out, and it must contain sufficient information to enable a public authority to show it has paid due regard to the duty and has identified methods for mitigating or avoiding the adverse impact of their approach.

It is emphasised in the judgement that due regard must be given before and at the time that a particular policy which will, or might affect disabled people is being considered by the public authority in question. As such, due regard to the duty must be an essential preliminary to any important policy decision, not a rearguard action following a concluded decision, i.e. consideration of the duty must be an integral part of the formation of a proposed policy, not a justification for its adoption. It is also a continuing duty and should be engaged in all stages of a decision-making process.

In this particular case, the judge concluded that the issue that the Council needed to address was “whether the impact on the disabled of the move to “critical only” was so serious that an alternative which was not so draconian should be identified and funded to the extent necessary by savings elsewhere”. Essentially Birmingham Council had failed to ask the right questions and councillors were not provided with the right information to answer those questions.

On the positive side for Birmingham however, Mr Justice Walker acknowledged the difficulties faced by council officers and stated that he was not making any personal criticism of officers of the council. He acknowledged that although it was not necessary to his decision, council officers were working under immense pressure both of time and resources.  Sadly however, being too busy is not a defence in court against a legal challenge.

So where does this leave councils? The judgement, whilst clarifying how authorities should carry out this exercise in the future, also highlights how complex the decision-making process has become, particularly at a time of such austerity. Councils have the difficult task of balancing the needs of all of their citizens, in a limited timescale and against the back drop of having to make increasing unrealistically high savings. However, there is no excuse for not following proper procedures or not taking into account relevant considerations, especially those as fundamental as equality duties which go to the core of a civilised society's values.

It is unlikely that this will be the last we hear on the subject as councils continue to count the cost of the cuts.

Linda Walker is Head of Public Law and Corporate Governance at national law firm, Dickinson Dees LLP.

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16.Jun.2011

Julian Blake calls on commissioners to seize the opportunity to make public benefit values central to the delivery of public services.

For commissioners and suppliers dedicated to making public benefit values central to commissioned public service delivery, there is no getting away from the too familiar problems with public service funding agreements, compounded by seemingly inflexible aspects of the European public procurement and state aid rules, further compounded by the impact of austerity budget cuts. But European law also sends positive messages over the barriers and obstacles.

At the end of 2010 the European Commission published Buying Social – A Guide to Taking Account of Social Considerations in Public Procurement. The theme is that the "unique European social model" is at the heart of the process of European integration, so that economic progress and social cohesion are "complementary pillars of sustainable development" and "socially responsive public procurement (SRPP)" can be an active means of promoting desirable public intervention. This should mean due recognition for public benefit service providers, other than only as undifferentiated market suppliers.

It should also have a particular bearing on the Coalition Government’s "mutualisation" policy, as delivery of public services outside the public sector is promoted, while their intrinsic public benefit nature must be preserved.

There are opportunities here for charities and social enterprises and enlightened commissioners to refocus on their complementary public benefit purposes and to overcome the economic policy mantra that being non-profit distributing is irrelevant for the purposes of procurement.

Actually, such status "is not in itself enough to avoid classification as an economic activity" and by implication has distinctive features that may be of importance when it comes to economic activity in the delivery of public services.

Charities and social enterprises know well what those features are, because they are what their people are dedicating to. However, they are hardly ever articulated in the context of competitive procurement.

They can, explicitly, be requested by a commissioner as added social value features which may count with price and quality in the assessment and they can also be set as defining conditions of contract delivery.

Charities and social enterprises can respond to procurements in such terms, including by answering unasked questions creatively within the asked questions.

Ideally this would lead to the social dimension becoming so central to public service delivery that private suppliers would have to meet genuine public benefit standards to win procurements. That is a reasonable answer to fears about the private sector hijacking the mutualisation agenda and one given by a representative of the Cabinet office in our recent seminar on the subject.

Julian Blake is Co-Head of Charity and Social Enterprise at public benefit law specialists Bates Wells & Braithwaite London LLP

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16.Jun.2011

A massive shared services programme is to go ahead in west central Scotland.

The Clyde Valley Councils partnership’s shared services would cover 35% of Scotland’s population. Areas due to be shared are waste management, health and social care, support services and social transport.

The participating councils are: East Dunbartonshire, East Renfrewshire, Glasgow, Inverclyde, North Lanarkshire, Renfrewshire, South Lanarkshire and West Dunbartonshire.

Options will be developed in workstreams this summer and councils will decide in the autumn which they wish to pursue.

The partnership said the support services stream, which will be led by East Renfrewshire and Inverclyde, was “believed to be the most ambitious shared service project currently being taken forward in the UK”, designed to create a publicly-owned organisation delivering finance, payroll, revenues and benefits, human resources, IT and customer services.

The proposals do not as yet include shared legal services, and no decision has been taken on whether this should be considered in future.

The waste management stream would be led by North Lanarkshire, health and social care by Renfrewshire and social transport by Glasgow.

Ronnie McColl, chair of the Clyde Valley Community Planning Partnership, said: “Given the scale of financial challenge facing local government there is a clear need to introduce new and innovative ways of delivering services.

“These changes aren’t simply motivated by cost. We genuinely believe that by working collaboratively and maximising our combined resources we could actually deliver a better service to the local community.”

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10.Jun.2011

A local authority acted unlawfully when it kept a 21-year-old man with autism and a severe learning disability in care for almost a year rather than permitting him to return to live with his father, a High Court judge has ruled.

In the case of London Borough of Hillingdon v Neary & Anor [2011] EWCH 1377, Mr Justice Peter Jackson said the man, Steven Neary, requires adult supervision and support at all times for his own safety and that of others. He is usually fun to be with, but can become moody and anxious. Steven can lash out at times – “not out in malice but rather in the manner of a small child”, according to the judge. He needs one adult present at all times, and two when he is out of the house.

This supervision was conducted by Steven’s father, Mark, and daytime support carers funded by Hillingdon Council, which the judge said provided extremely high levels of support. In December 2009 Steven was taken into respite care – initially for a few days – when his father was “unwell and felt exhausted”. However, the council subsequently decided to keep him in a support unit amid concerns about his behaviour and his weight gain.

Mr Neary took the local authority to court in May 2010 in a bid to have him returned to the family home. In a judgment in December 2010, Mr Justice Mostyn ruled that Steven should be allowed to live with his father again.

In the latest ruling in relation to the case, published yesterday, Mr Justice Peter Jackson acknowledged that the environment in which local authorities operate in the field of adult care “is not legally coherent and bristles with intricate regulation”.

Two central principles were nonetheless clear, the judge said. “The first is that it is undoubtedly lawful for actions to be taken by families and local authorities, acting together on the basis of a careful assessment of the best interests of incapacitated persons,” he continued. “The vast majority of arrangements are made in this way and involve no breach of the rights of the persons concerned. Where there is a deprivation of liberty, a specific statutory code exists to provide safeguards.”

The second central principle identified by Mr Justice Peter Jackson concerned cases of disagreement. “The ordinary powers of a local authority are limited to investigating, providing support services, and where appropriate referring the matter to the court,” he said. “If a local authority seeks to regulate, control, compel, restrain, confine or coerce it must, except in an emergency, point to specific statutory authority for what it is doing or else obtain the appropriate sanction of the court.”

Hillingdon argued before the High Court that: it had the right to keep Steven in the support unit; it was in his best interests that it did so; between January and April 2010, it had the consent of Mr Neary and Steven was not deprived of liberty at that time; and in relation to the period from April to December 2010, a series of DOL authorisations that it (as a supervisory body) had granted to itself (as a managing authority) “clothed it with legal entitlement”.

Mr Justice Peter Jackson rejected the council’s arguments, concluding that Steven was deprived of liberty throughout the year. He also rejected Hillingdon’s claim that Mr Neary had given his consent, and found that the authorisations were flawed. Even if they had been valid, the judge said, the authorisations would not have amounted to lawful authority for keeping Steven at the support unit.

The judge said it followed that Hillingdon had no lawful basis for keeping Steven away from his home between 5 January 2010 and 23 December 2010.

“The fact that [the council] believed that it was acting for the best during that year is neither here nor there,” he said. “It acted as if it had the right to make decisions about Steven, and by a combination of turning a deaf ear and force majeure, it tried to wear down Mr Neary's resistance, stretching its relationship with him almost to breaking point. It relied upon him coming to see things its way, even though, as events have proved, he was right and it was wrong. In the meantime, it failed to activate the statutory safeguards that exist to prevent situations like this arising.”

The judge applauded Mr Neary for standing up for his son’s interests. Although Steven appeared not to have suffered significant or long-term harm, Mr Justice Peter Jackson said things could easily have turned out differently as the council had planned to send him to a long-term placement outside London. One of the facilities considered would have required Steven to have been sectioned under the Mental Health Act.

“It is very troubling to reflect that this approach might actually have succeeded, with a lesser parent than Mr Neary giving up in the face of such official determination. Had that happened, Steven would have faced a life in public care that he did not want and does not need.”

The judge declared that Hillingdon had unlawfully breached Steven’s right to respect for his family life, contrary to Article 8 of the European Convention on Human Rights.

He said a number of features of the case had collectively persuaded him on this issue, including the fact that Hillingdon had never made any mention in its very full records of Steven’s year in care of the supposition that he should be at home, or the disadvantages of living away from his family “still less an attempt to weigh those disadvantages against the supposed advantages of care elsewhere”. No attempt had been made at the outset to carry out a genuinely balanced best interests assessment, “nor was one attempted subsequently”.

The judge also said that Hillingdon’s approach was calculated to prevent proper scrutiny of the situation it had created; it did not seriously listen to Mr Neary’s opposition. The use of DOL authorisations had not been justified on the information available to the council either.

Mr Justice Peter Jackson went on to conclude that:

• By keeping Steven at the support unit between 5 January 2010 and 14 April 2010, Hillingdon unlawfully deprived him of his liberty, contrary to Article 5(1) of the ECHR.
• By keeping Steven at the support unit between 15 April 2010 and 23 December 2010, and notwithstanding the urgent DOL authorisation granted by Hillingdon as managing authority and the three standard DOL authorisations granted by Hillingdon as supervisory body, Hillingdon unlawfully deprived him of his liberty, contrary to Article 5 (1) ECHR.
• By failing to (i) refer the matter to the Court of Protection sooner than 28 October 2010, and/or (ii) appoint an Independent Mental Capacity Advocate for Steven sooner than 29 October 2010, and/or (iii) conduct an effective review of the DOL best interests assessments under Part 8 of Schedule A1 of the Mental Capacity Act 2005,
Hillingdon deprived Steven of his entitlement to take proceedings for a speedy decision by a court on the lawfulness of his detention, contrary to Article 5(4) ECHR.

The judge said the case raised important practical issues for those working in the adult care field. He highlighted three: (a) the purpose of deprivation of liberty authorisations and of the Court of Protection; (b) decision-making; and (c) the responsibilities of the supervisory body.

On the first issue, the judge said: “Significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection, where decisions can be taken as a matter of urgency where necessary.

“The DOL scheme is an important safeguard against arbitrary detention. Where stringent conditions are met, it allows a managing authority to deprive a person of liberty at a particular place. It is not to be used by a local authority as a means of getting its own way on the question of whether it is in the person's best interests to be in the place at all.”

The judge said that using the DOL regime in that way turned the spirit of the Mental Capacity Act 2005 on its head, with a code designed to protect the liberty of vulnerable people being used instead as an instrument of confinement. “In this case, far from being a safeguard, the way in which the DOL process was used masked the real deprivation of liberty, which was the refusal to allow Steven to go home,” he concluded.

On the second issue, Mr Justice Peter Jackson warned that poor decision-making processes often lead to bad decisions. “Where a local authority wears a number of hats, it should be clear about who is responsible for its direction,” he said.

“Here, one sub-department of Hillingdon's adult social services provides social work support and another is responsible for running facilities such as the support unit. At the same time, senior social workers represent the supervisory body that determines whether or not a DOL authorisation should be granted. In that situation, welfare planning should be directed by the team to which the allocated social worker belongs, although there will of course be the closest liaison with those who run the support facilities. The tail of service provision, however expert and specialised, should not wag the dog of welfare planning.”

The High Court judge concluded that the Neary case was characterised either by an absence of decision-making or by a disorganised situation where nobody was truly in charge and it was consequently possible for nobody to take responsibility. “At various stages during the hearing, I asked Hillingdon witnesses to explain who was answerable for various actions, but no-one could say,” he said. “Even when its position came under strong and public challenge towards the end of the year, and when at least one very senior social work manager had serious concerns about what was happening, this had no effect on the corporate position.”

Turning to the responsibilities of the supervisory body, the judge said the granting of DOL standard authorisations was a matter for the local authority in its role as a supervisory body. “The responsibilities of a supervisory body, correctly understood, require it to scrutinise the assessment it receives with independence and a degree of care that is appropriate to the seriousness of the decision and to the circumstances of the individual case that are or should be known to it,” he said. “Where, as here, a supervisory body grants authorisations on the basis of perfunctory scrutiny of superficial best interests assessments, it cannot expect the authorisations to be legally valid.”

Mr Justice Peter Jackson separately criticised a media briefing note prepared by Hillingdon prior to a hearing on 20 May 2011 in a bid to counteract adverse publicity it had received. He said this was “a sorry document, full of contentious and inaccurate information, and creating a particularly unfair and negative picture of Steven and his behaviour”. Mr Justice Peter Jackson said the council accepted in hindsight that an error of judgment was made in issuing the note.

The judge said that while his ruling was “necessarily critical” of decisions taken by Hillingdon, even during the year of committed care “some tremendous results were achieved during what was an otherwise unhappy time for all”.

Mr Justice Peter Jackson said things had gone well since Mark’s return to his father’s home, and plans were being finalised for the support he will receive. He expects to approve these plans at a hearing in a few weeks’ time, and so bring an end to the proceedings.

Mr Neary said he felt vindicated after the High Court ruling. “Hopefully people will read this judgment and be prepared to fight for the rights of their kids,” he said. Mr Neary added that he would be looking at how to rebuild a relationship with the local authority.

Hillingdon’s Director of Social Care, Linda Sanders, apologised to him and Steven. "It is clear that there have been times when we have let both of them down,” she said.

Sanders claimed that the council had “to carefully balance what we think is right for an individual with the wider issues such as the safety of the public”

She highlighted comments by the judge that Hillingdon’s staff were genuinely committed to ensuring that the council did the right thing for Steven. In particular, she said, Mr Justice Peter Jackson had suggested that the failings were collective errors of judgement, not the result of individual staff.

Sanders added: "We recognise that we need to improve our processes and that we should have kept Steven's father more involved during the time that we cared for Steven.

"We have already made significant changes relevant to this case and we are reviewing our training for those staff who deal with the complex issues relating to the Mental Capacity Act and Deprivation of Liberty safeguards. We will also carefully consider all of the judge's comments to see if there are any further changes we need to make to improve our processes.”

Commenting on the case, barristers Alex Ruck Keene and Victoria Butler-Cole of 39 Essex Street said the judgment was important on a number of levels. However, they singled out the judge’s conclusions on Article 5(4) as of particular significance for local authorities and PCTs.

“There has been some degree of debate as to the circumstances under which local authorities are required to bring matters before the Court,” they said. “Whilst the (DOL safeguards) Code of Practice includes some guidance at paragraphs 8.7-8.8, as Peter Jackson J noted, they do not answer the question. Nor has there been a replacement for the endorsement of the Official Solicitor’s Practice Note which gave guidance as to the correct applicant under the old inherent jurisdiction (see Official Solicitor: Declaratory Proceedings: Medical and Welfare Decisions for Adults Who Lack Capacity [2006] 2 FLR 373).”

Ruck Keene and Butler-Cole said the judgment strongly suggested that, even in a time of budget constraints, the onus is upon the local authority (or the PCT) to bring deprivation of liberty cases – whether under Schedule A1 or otherwise – before the Court in a timely fashion where there is any doubt as to whether:

• it is in P’s best interests to be where he is;
• whether (if relevant) he is deprived of his liberty; and
• whether that deprivation is proportionate and in his best interests.

“To rely on P to enforce his own rights under Article 5(4) (or even to rely upon the fact that a family member may be in a position to seek to do so) would appear (and in our opinion entirely correctly) to run the very serious risk that those rights amount to nothing,” they said.

Philip Hoult