Details

03.Mar.2011

The Court of Appeal has ordered a local authority to provide support to a severely autistic teenager when he turns 18, in a ruling that clarifies the interplay between the Children Act 1989 and the Education Act 1996.

In R (RO) v East Riding of Yorkshire Council & Anor [2011] EWCA Civ 196, the teenager (RO), who also had severe attention deficit hyperactivity disorder, was living in a specialist residential school funded by his education authority.

The issue was whether because of past accommodation provided to him by his local authority as a matter of respite care for the sake of his parents, and/or because of his placement and accommodation at Horton House (the residential school), the teenager was a “looked after child” within the Children Act 1989 as well as within the SEN regime of the Education Act 1996.

If he was a “looked after child”, he would be entitled to a range of benefits on turning 18, including housing, medical care and support until he was 21 or 24 if in education. If he lacked LAC status, the benefits of that previous but expired status would not be available to him.

The case raised a question about the relationship between the Children Act and the Education Act, as well as issues about a council’s obligations and powers under s. 20 of the Children Act to accommodate children.

At the High Court, Mr Justice Cranston held that RO’s LAC status had come to an end when he went to Horton House. The judge said that the council was “providing him accommodation at the residential school, not under its social services functions but by virtue of a Statement of Special Educational Needs under the Education Act 1996”.

However, this ruling was overturned by the Court of Appeal. Giving the lead judgement, Lord Justice Rix said the council had misread the situation when it assumed that just as the provision of respite care had brought RO’s LAC status into being, so the ending of that respite care accommodation had terminated his status.

The judge said: “The respite care was merely a symptomatic consequence of RO’s and his parents’ needs and difficulties: those same needs and difficulties led ineluctably to the further symptomatic consequence of the provision of accommodation at the Horton House placement. Thus the ending of the former could not lead to the termination of LAC status.

“In these circumstances, where RO's needs, social as well as educational, had driven the placement, as had been appreciated by RO's LAC review team long before the education department had fallen into line, it is impossible in my judgment to regard the Education Act's SEN regime as supplanting rather than supporting the Children Act's LAC regime. Of course it is possible to regard education as extending more broadly, as it is possible to regard care as extending more broadly. However, ultimately it is the Children Act which is intended to provide the holistic support for children in need who have, because of the provision of accommodation to them, come within the regime and status of being looked after children.”

Lord Justice Rix added: “Although the council regarded RO's looked after status as turning entirely on whether RO continued to be accommodated in weekend respite foster placements, and his future accommodation as being simply provided for under the Education Act, this was, on the acknowledged facts, an erroneous, impossible, irrational and unlawful view to take.

“They do not appear, at the end of the day, to have asked themselves what their continuing obligations under the Children Act might have been but simply to have assumed that respite care was all that concerned them under that Act, and that the rest was education and something different.”

In a statement the Children’s Legal Centre, which acted as the family’s solicitors, said: “The judgement clarifies the law and stops local authorities from using a technicality to refuse to provide support for some disabled children once they turn 18.”

The Centre’s Ed Duff, who worked on the case, said: “Looked after status is a really important and special status which means local authorities can’t just wash their hands of the young person once they turn 18. Unfortunately, some authorities don’t like these laws and seek to avoid them as they involve time and money.”

He added: “This vulnerable child now has the safeguards which the Children Act 1989 says he should always have had. It has taken three years, two High Court dismissals and two Court of Appeal applications for the family to put this right. This is a tremendous relief to his family, and we are delighted to have helped them secure their son’s care once he turns 18.”

Philip Hoult

Details

01.Mar.2011

Arrangements put in place for two sisters with substantial and permanent learning disabilities did not amount to deprivations of their liberty, the Court of Appeal has ruled.

In P & Q v Surrey County Council [2011] EWCA Civ 190, P was born on 27 April 1991 and Q was born on 11 April 1992. Through the Official Solicitor, acting as their litigation friend, the sisters appealed a declaration made by Mrs Justice Parker in the Court of Protection that arrangements overseen by Surrey County Council were not a deprivation of liberty.

Giving the lead judgement in the Court of Appeal, Lord Justice Wilson said the issue whether the arrangements for P and Q amounted to a deprivation of their liberty was an issue as to whether the arrangements engaged Article 5 of the European Convention on Human Rights.

This right to liberty and security of person provides – under Article 5(4) – that everyone who is deprived of their liberty by detention “shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”.

Lord Justice Wilson said that if it was concluded that the arrangements did amount to a deprivation of liberty, P and Q would have had the right “to take court proceedings for a decision in relation to the lawfulness of their detention and so it would extend beyond their right, which pursuant to statutory guidance Surrey recognises in any event, to a review, at least annually, on Surrey’s part into the continued aptness of the assessment under which their needs are met, including participation in the review by independent advocates on behalf of P and Q”.

The judge added: “The paragraph – 5(4) – would impose a duty on the court itself periodically, again probably at least annually, to review the continued necessity for the arrangements which deprive them of their liberty, albeit perhaps only on paper unless requested otherwise. The court’s review would probably again require independent representation of them.”

P had a mental age of two-and-a-half and her learning disability was either at the lower end of the moderate range or at the upper end of the severe range. As well as problems with her sight and hearing, the judge said, she communicated with difficulty and had limited understanding. “She lives largely in her own world and spends much of her time listening to music on her iPod,” he added.

Q meanwhile had an overall mental age of four to five and her learning disability was at the high end of the moderate range and bordered on the mild range. Her communication skills were better than P’s – “indeed her language skills are at a higher level than that indicated by the overall assessment”, the judge said, adding that her emotional understanding was quite sophisticated.

“Like P, she has problems with her sight,” Lord Justice Wilson said. “But, unlike P, she is troubled in her mind, exhibits challenging behaviour and may have autistic traits. It is possible that, if she can learn to manage her emotions, Q can somewhat raise the general level of her functioning.”

The impairment in functioning of both sisters meant they were unable to make decisions for themselves in relation to anything other than the most trivial, day-to-day aspects of their lives. They therefore lacked capacity for the purposes of s. 2 of the Mental Capacity Act 2005, the judge said.

Both P and Q had lived with their mother until April 2007 (the father having played no part in their lives). A half-sister was born in 1988 and a sister in 1993. In 1997 a man who became their stepfather moved into the home.

However, the sisters' life in the family home was described as dysfunctional and abusive. “Each of them was subjected to excessive physical chastisement, neglect and deprivation,” the judge said. They were finally removed from the home in April 2007.

On their removal from the family home, P moved into a foster home where she was living at the time of Mrs Justice Parker’s enquiry. Q first moved into the home of her former respite carer, but the latter felt she could not manage Q’s aggressive outbursts. Q was then moved into a small residential home.

The Court of Appeal looked at the arrangements in place at the time Mrs Justice Parker heard the case. (Since then, the arrangements have been changed by Surrey for both sisters. “The recent changes will make our judgments less helpful to the parties than otherwise, but, on a wider basis, they may nevertheless have some value,” Lord Justice Wilson said.)

P’s arrangements were:

• she was living in an excellent foster home in Surrey
• she was devoted to her foster mother
• she had her own bedroom
• she refused to keep her bedroom door open
• the door was never locked
• she had never attempted to leave the home on her own and had showed no wish to do so
• were she to attempt to leave, the foster mother would restrain her
• the foster mother provided intensive support to her in respect of most aspects of daily life
• she attended a unit of further education each term-time day and was transported to and fro
• the foster mother took her out on trips and holidays
• she needed help in crossing the road because she was unaware of danger, and
• she was not in receipt of medication.

Q’s arrangements were:

• she was living in a specialist home for adolescents in Surrey in which she was one of four residents
• it was not a care home within the meaning of s.3 of the Care Standards Act 2000
• she had her own bedroom
• she occasionally suffered outbursts directed at other residents and she sometimes then required physical restraint
• largely as a result of the use of behavioural management techniques, her behaviour was becoming significantly more stable
• her care needs were met only as a result of continuous supervision and control
• she was not locked into the home, which was not a secure unit
• she showed no wish to go out on her own and so did not need to be prevented from doing so
• whenever she left the home, she was attended
• she was taken to and from the same unit of further education as was attended by P
• she could communicate her wishes in a limited manner
• she had a fuller social life than did P, and
• she was in receipt of medication, Risperidone, for the purpose of controlling her anxiety.

Lord Justice Wilson said the European Court of Human Rights had made clear – in Storck v Germany [2005] 43 EHRR 96 – that a deprivation of liberty had three elements:

• the objective element of a person’s confinement to a certain limited place for a not negligible length of time
• the additional subjective element that they have not validly consented to the confinement in question, and
• the confinement must be “imputable to the state”.

The judge said that the second and third elements both existed in the sisters’ cases. What was key was whether the first, objective element was met by P and Q’s different circumstances.

Lord Justice Wilson said that Mrs Justice Parker had delivered a “magisterial” analysis but had nevertheless been wrong to suggest that a person’s happiness was relevant to whether they were deprived of their liberty. “Its relevance is as to whether any such deprivation is in her best interests….Such is a necessary condition of its being ‘lawful’ and thus of its not infringing Article 5.”

Lord Justice Wilson said that the overlapping view which was relevant was whether the person objected to the confinement which is imposed on them.

“If a person objects to the confinement, the consequence will be conflict,” the judge argued. “At the very least there will be arguments and she will suffer the stress of having her objections overruled. More probably, as in the case of Miss Storck, there will be tussles and physical restraints and even perhaps her forcible return at the hands of the police.

“This level of conflict inherent in overruled objections seems to me to be highly relevant to the objective element. Equally, however, the absence of objections generates an absence of conflict and thus a peaceful life, which seems to me to be capable of substantial relevance in the opposite direction.”

Lord Justice Wilson also said the administration of medication – “at any rate of antipsychotic drugs and other tranquillisers” – was always a pointer towards the existence of the objective element as it suppresses the individual’s liberty to express themselves as they would otherwise wish. .

“Indeed, if the administration of it is attended by force, its relevance is increased,” he added. “Furthermore, in that objections may be highly relevant, medication which has the effect of suppressing them may be relevant to an equally high degree. But again, conversely, the absence of medication is a pointer in the other direction.

Lord Justice Wilson said Mrs Justice Parker had been wrong to attach significance to the fact that the purpose of the arrangements for the girls was to further their best interests.

However, he added that – as the judge in the Court of Protection had implied – the relative normality of the living arrangements under scrutiny was relevant. “If the person is living with her parents or other members of his natural family in their home, she is living – in that respect – the most normal life possible,” Lord Justice Wilson suggested. “Typically – but sadly not always – there will be no deprivation of liberty in such circumstances. Not much less normal for this purpose is the life of a child in the home of foster parents or of an adult, such as Mr HL, in the home of carers…..But, even when the person lives in an institution rather than in a family home, there is a wide spectrum between the small children's home or nursing home, on the one hand, and a hospital designed for compulsory detentions like Bournewood; and it is in my view necessary to place each case along it.”

The Court of Appeal judge said that the enquiry into normality transcended an enquiry into the residential arrangements. “Of potentially great relevance in the case of children or young adults is whether, as would be normal almost irrespective of the degree of any disability, they go out to some sort of school or college; and, in the case of other adults, whether they go out to college or to a day centre or indeed in order to pursue some form of occupation.” Restrictions placed on outside social contact would also be relevant.

Lord Justice Wilson said factors relevant to both P and Q were that:

• they were not free to leave their respective accommodation
• they did not object to the arrangements for them and did not seek to leave – and therefore did not have to be restrained from leaving – their accommodation
• their daily care needs were met by virtue of supervision and control
• they had their own bedrooms
• they were not under close confinement within their accommodation
• they were taken out each day to the unit of further education
• they were taken on other outings
• they had good outside contact with family members under elaborate arrangements made by Surrey; “although their contact with the mother was not as frequent as she had wished, they had reasonable contact with her and, apparently more importantly for them, reasonable contact with each other, with the half-sister and with the sister”, and
• the elements of confinement, supervision and control in their lives were likely to be permanent.

Additional factors relevant to the case of P were that:

• she was living in a family home
• her social life was very limited, and
• she was not in receipt of medication.

Additional factors relevant to the case of Q were that:

• she was not living in a family home
• she was living in a home in which she was one of only four residents
• her outbursts, though becoming less frequent, sometimes precipitated the need for physical restraint
• she was in receipt of medication, albeit not forcibly administered, for control of her anxiety; but, “as Mrs Justice Parker expressly found, she would have required such medication whatever her circumstances and neither its purpose nor its effect was to restrain her from trying to leave the home or from pursuing any other activity”, and
• her social life was fuller than that of P.

Dismissing both appeals, Lord Justice Wilson said that Mrs Justice Parker was “clearly correct” to conclude that P was not being deprived of her liberty. However, the case of Q was “closer to the border of deprivation” by virtue of factors such as she was not living at home, her outbursts – though becoming less frequent – sometimes precipitated the need for physical restraint, and she was in receipt of medication (albeit not forcibly administered) for control of her anxiety.

Following what he called “protracted thought”, Lord Justice Wilson upheld Mrs Justice Parker’s view that there was no deprivation of liberty in Q’s case either. “The small size of the home for adolescents in which she lived; her lack of objection to life there; her attendance at the educational unit; her good contact with such members of her family as were significant for her; and her other, fairly active, social life: such were the main factors which kept her outside Article 5,” he said.

Philip Hoult

Details

28.Feb.2011

The Care Quality Commission has unveiled plans to develop a new excellence scheme for adult social care.

Key features of the scheme, which is due to be launched in April 2012, are:

• It will be CQC-owned, but delivered by other organisations under licence
• It will be voluntary, with social care providers choosing to apply for the award
• There will be a proportionate charge
• Awards will be published by the CQC alongside its own reports on whether or not providers are meeting essential standards.

The CQC said it would launch a consultation in May on how to define excellence in adult social care. This will build on work already carried out on its behalf by the Social Care Institute for Excellence.

At the same time as the consultation, the CQC will seek seek expressions of interest to deliver the scheme.

CQC chief executive Cynthia Bower said: “CQC’s role is to identify and react to signs that people may be at risk of receiving poor care. This means we can say we don’t see signs of risk at a provider, but this is not the same as saying a provider is offering ‘excellent’ care.

“We do, however, firmly believe that care providers should aspire to deliver the best possible outcomes. An excellence award can recognise best practice, be a spur to improvement for providers who already meet CQC’s essential standards, and can help people who need longer-term care to make choices.”

The CQC’s announcements comes less than year after the Commission stopped awarding ‘star ratings’ under the Care Standards Act 2000.

Details

24.Feb.2011

A legal action is to be brought on behalf of a 65-year-old woman with significant learning disabilities against Birmingham City Council over its proposals to limit care to only those with ‘critical’ needs.

The case is thought to be one of the first of its kind over proposed local authority adult care cuts, although the claimant’s law firm – Irwin Mitchell – said it was acting for a number of other vulnerable people in other parts of the UK.

Birmingham wrote to the woman – Ms A – at the beginning of February, warning that the changes could affect the care and support she receives at her residential care home in Solihull. She was contacted as part of a consultation exercise which is due to end on 2 March 2011.

Earlier this month the council said its adults and communities service area would implement a “bold new operating model based on investment in prevention and re-enablement, with limited core funding directed to people who have limited funds and critical needs”.

The announcement was part of a package of measures aimed at saving £212m in 2011/12.

Irwin Mitchell, instructed by Ms A’s sister-in-law, said it would be seeking “an urgent judicial review on the lawfulness of the consultation process”, adding that it believed the case was “one of many where councils are making decisions to cut public services whilst ignoring residents’ legal rights”.

Polly Sweeney, solicitor in the firm’s public law team, said: “This is sadly one of a number of examples we are seeing at the moment where local councils under pressure to cut costs are riding roughshod over the needs and legal rights of some of society’s most vulnerable individuals.”

The firm said the grounds for the JR were that Birmingham had failed to undertake a lawful consultation and pay due regard to the need to promote equality under the Disability Discrimination Act 1995.

It claimed that the authority’s consultation lacked clarity in relation to the groups affected by the proposal to exclude care for those with ‘substantial’ care needs. The document also did not address what the options are for those people who will have their care package removed, the firm said.

Irwin Mitchell will also seek to argue that “the claimant’s human rights under the European Convention on Human Rights could be severely compromised as the proposals threaten her right to a private life and her ability to access essential support and care to enable her to live safely and maintain a level of independence.”

The firm also “questions whether the council has considered alternatives such as raising council tax and indeed whether it needs to make the cuts in the first place”.

Irwin Mitchell’s Sweeney said cutting vital care provision for the disabled and elderly had not been properly justified. “Although we accept that the council is forced to make difficult decisions in relation to the allocation of its budget and this is part of a legitimate aim to create economic well being for the UK as a whole, we do not accept that the proposed changes to the provision of adult social care are proportionate to that aim,” she said.

Sweeney added that the firm had been in touch with Birmingham to request specific information in relation to some of the points raised in the council’s initial document.

“We have also asked that the consultation process be put on hold and the process revised in line with our recommendations,” she said. “Unfortunately, we have not been satisfied with their response and therefore our client has no other option but to launch proceedings.”

Irwin Mitchell said the case would come to court on Monday 28 February unless the council agreed to keep funds in reserve when the budget is due for approval at the Council on Tuesday 1 March 2010.

A spokeswoman for Birmingham CC declined to comment on the prospective legal action.

Philip Hoult

Details

23.Feb.2011

Cambridgeshire County Council has avoided a monetary penalty despite the Information Commissioner’s Office finding that the authority had breached the Data Protection Act by losing a memory stick containing sensitive data relating to vulnerable adults.

The council told the watchdog in November 2010 about the incident, which saw an employee lose an unencrypted memory stick containing personal data relating to a minimum of six individuals. The stick included case notes and minutes of meetings relating to the individuals’ support.

The employee had saved the information on an unapproved memory stick after encountering problems with an encrypted memory stick provided by Cambridgeshire.

The incident also occurred after the council had conducted an internal campaign promoting its encryption policy. Cambridgeshire had asked its employees to hand in unencrypted devices and warned them about the importance of keeping personal information secure.

The council has now signed a formal undertaking agreeing to improve its existing security measures and to carry out regular monitoring.

Sally Anne Poole, Enforcement Group Manager at the ICO, said the case showed that organisations needed to check their data protection policies were continually followed and fully understood by staff.

She added: “We are pleased that Cambridgeshire County Council has taken action to improve its existing security measures and has agreed to carry out regular and routine monitoring of its encryption policy to ensure it is being followed.”

The ICO has so far levied substantial monetary penalties on three local authorities – Hertfordshire County Council, Ealing Council and Hounslow Council – for breaches of the DPA since it was given new powers in April 2010.

However, the watchdog decided against levying a monetary penalty against Cambridgeshire.

An ICO spokesman said the steps taken by the county council prior to the incident would have been taken into account in its decision.

He added: “With regards to a fine, there has to have been shown either a complete disregard for the Data Protection Act or negligent action. With Cambridgeshire County Council, they had an existing policy in place and had conducted an internal campaign. They had also provided encrypted devices free-of-charge to staff. They had gone that extra mile if you like.

"The reason they breached the Act was that the member of staff was provided with an encrypted memory stick but couldn't work it – either the memory stick was damaged or the individual just didn't understand the technicalities of how it worked.

“We wouldn’t normally fine someone when they have taken such steps because it shows that they are aware of the Act and they have taken the necessary precautions. However, what the undertaking says is that they can make improvements. It's not the fact that they haven't got a policy or that the policy is fundamentally flawed, it's the fact that they can improve this policy but we do recognise that they have a fairly strong policy in place."

The spokesman added: "There’s always that slim chance – it only takes one member of staff on any one day to breach the policy and this case really just highlights that fact.”

Details

22.Feb.2011

The Court of Appeal has handed down a significant judgement on the allocation of responsibility between social services authorities for meeting the care needs of a patient discharged into the community following a period of detention under the Mental Health Act 1983.

In Hertfordshire County Council, R v JM (Rev 1) [2011] EWCA Civ 77, Hertfordshire CC and the intervening party (JM) asked the Court of Appeal to make a declaration that “is resident” in s. 117(3) of the MHA 1983 had the same (or substantially the same) meaning as “is ordinarily resident” under s. 24 of the National Assistance Act 1948.

This would have meant that a person placed by a local authority under s. 21 of the NAA in the area of another local authority remained ordinarily resident in the area of the placing authority for the purposes of Part 3 of the NAA 1948 and s. 117(3) of the MHA.

Counsel for Hertfordshire and JM both argued that Mitting J’s decision in the High Court – refusing such a declaration – created practical problems. Counsel for JM, Nathalie Lieven QC, identified these as including:

• “responsibility for the social care of a mentally ill person will shift between local authorities, without any planning or any therapeutic purpose, on the day an individual is detained under s.3 MHA; this is precisely the time when consistent, coherent care is most needed to increase the chances of early discharge and to maintain existing community links
• prior to discharge and subsequently, the social care of a mentally ill person will be provided by a new social work team unfamiliar with the individual's history and family background
• aftercare is more likely to be provided out of the ‘home’ borough, and away from the friends, family and support networks that are vital to re-integration and recovery
• there will be a strong financial incentive on local social services authorities to place people such as JM, who are likely at some point to be admitted under the MHA, outside their borough boundaries."

Giving the lead judgement, Lord Justice Carnwath said he had “considerable sympathy” for Hertfordshire’s arguments. “It is not easy to see why Parliament did not simply follow the precedent of the 1948 Act when enacting the duty under section 117,” he added.

“However, the 1948 Act precedent must have been well-known to those involved in drafting the new Bill….We have to proceed on the basis that Parliament deliberately chose a different formula; and that, by implication, it accepted the possibility of responsibility changing over the period of detention, including the potential impact on continuity of patient care.”

The judge said the Court was also bound by the decision in Stennett to accept that section 117 was intended to be a free-standing provision, not dependent on the 1948 Act.

He added that these considerations were sufficient to require the court to reject Hertfordshire’s proposed form of declaration.