Thoughts on the crossroads of law, politics and society – for when a tweet isn't enough. This blog contains general information and commentary on legal matters. It is not intended to provide legal advice. This blog discusses the law in England, unless otherwise stated.

Month: October, 2014

Duty to consult – Supreme Court sets down what fairness requires

The question of what fairness requires in the context of consultation by public bodies has finally been answered by the Supreme Court. I would suggest that the answer means that many consultations previously held by public bodies were not carried out lawfully – and many presently ongoing may be unlawful as well.

The Supreme Court’s judgment is in R (Moseley) v LB Haringey [2014] UKSC 116 (disclaimer – I was involved in the case at its early stages as junior counsel for Mrs Stirling, the previous claimant who sadly died before the case reached the Supreme Court). You can download the judgment and the press summary from the Supreme Court website. Summaries are also available from Irwin Mitchell (solicitors for Mrs Moseley) and Monckton Chambers (where Ian Wise QC and I are based).

Mrs Moseley challenged (by way of an application for judicial review) the consultation which led to the decision by Haringey to adopt a scheme for Council Tax support requiring even the poorest residents to pay around 20% of their Council Tax bill, unless they were disabled people or pensioners. The decision affected around 36,000 households. Over 25,000, like Mrs Moseley, would previously have had their full liability for Council Tax met under the national Council Tax Benefit scheme.

The fundamental problem with the consultation materials, as Lord Wilson makes clear in his judgment with some rigorous analysis, is that they failed to recognise that Haringey had a choice to make. The materials strongly suggested that Haringey were required to pass on the shortfall in Council Tax support funding (one of the coalition’s nastiest cuts) to the poorest residents.

In fact it was open to Haringey to meet the shortfall in a number of ways – by requiring wealthier residents to pay more, by using its reserves and so on. See Lord Wilson’s judgment at [15] for how other local authorities responded to the cut; 25% entirely absorbed the shortfall in funding, 33% required their poorest residents to pay a sum no greater than 8.5% of their Council Tax liability so qualifying the authority for a transitional grant and the remaining 42% (including Haringey) passed on the whole shortfall, some (again including Haringey) exempting particular groups like disabled people.

These alternative options had been considered by Haringey’s officers and rejected. However the existence of these options was not made known to consultees, nor were the reasons why they had been rejected made clear. To the contrary, the consultation materials stated ‘This means that the introduction of a local Council Tax Reduction Scheme in Haringey will directly affect the assistance provided to anyone below pensionable age that currently involves council tax benefit’; see judgment of Lord Wilson at [17] (emphasis added). There was no suggestion here, or in numerous other places in the materials, that Haringey were left with any choice in the matter – although around 6 in 10 local authorities ultimately did make different choices.

Before considering whether Haringey’s consultation was unfair and unlawful, Lord Wilson gave the following general guidance as to the requirements of a lawful consultation:

  • Fairness is ‘a protean concept, not susceptible of much generalised enlargement’; [24]. Apart from the being the kind of language that might be thought to give lawyers a bad name, this means that it is impossible to pin down precisely what fairness requires.
  • However importantly, what fairness requires is determined by the purposes of consultation, also [24]. Drawing on the extremely important Supreme Court judgment in R (Osborn) v Parole Board [2013] UKSC 61, Lord Wilson held that there are three purposes behind consultation. Firstly, consultation should lead to better decision-making, ‘by ensuring that the decision-maker receives all relevant information and that it is properly tested’. Secondly, it should avoid the ‘sense of injustice’ that will be created if no consultation takes place. Thirdly, consultation should reflect ‘the democratic principle at the heart of our society’ – an important theme in the judgment of Lord Reed, see below.
  • The well-known criteria put forward by Lord Justice Sedley when he was counsel in the case of R v Brent London Borough Council ex p Gunning and then adopted by the Court of Appeal in R v North and East Devon Health
    Authority ex parte Coughlan [2001] QB 213 have now been approved by the Supreme Court, see [25]. This means that generally consultation must: (i) take place at a ‘formative stage’, i.e. sufficiently early in the decision making to influence the outcome, (ii) provide ‘sufficient reasons for any proposal to permit of intelligent consideration and response’, (iii) allow ‘adequate time’ for consideration and response and (iv) ensure ‘the product of consultation’ is ‘conscientiously taken into account’ in the final decision.

The central issue in Moseley was the third of these criteria – whether Haringey had given ‘sufficient reasons’ for its proposals, and in particular whether in the circumstances they were obliged to tell consultees about the other options which had been considered and rejected. However before determining this question Lord Wilson made three further general points, see [26]-[28]:

  • Firstly, the ‘degree of specificity’ which fairness requires in relation to consultation materials varies according to the identity of the consultees. Members of the public may require more specific and detailed information than technical experts. By extension, a consultation aimed at disabled people may require a clearer and more precise explanation than a consultation which does not have a disability focus.
  • Secondly, the demands of fairness are likely to be greater ‘when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit’. In other words, if the consultation is about cuts there is an even more stringent requirement for it to be fair than if the consultation concerned proposed improvements to services or support.
  • Thirdly, and critically in Mrs Moseley’s case, fairness may require that ‘interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options’. This of course was not what Haringey had done.

Applying the above principles, Lord Wilson reached the inevitable conclusion at [29]:

Those whom Haringey was primarily consulting were the most economically disadvantaged of its residents. Their income was already at a basic level and the effect of Haringey’s proposed scheme would be to reduce it even below that level and thus in all likelihood to cause real hardship, while sparing its more prosperous residents from making any contribution to the shortfall in government funding. Fairness demanded that in the consultation document brief reference should be made to other ways of absorbing the shortfall and to the reasons why (unlike 58% of local authorities in England: see para 15 above) Haringey had concluded that they were unacceptable.

Lord Wilson then gave an example at [30] from Birmingham’s consultation of how this could have been done in practice.

The next question was whether, as the Court of Appeal had concluded, it did not matter that the consultation materials failed to refer to other options because these were ‘reasonably obvious’. Lord Wilson dismissed this argument at [31] for two reasons:

  • Even if the existence of other options was reasonably obvious it was not at all obvious why Haringey had rejected them. As Lord Wilson observed, ‘I speak as one who, even after a survey of the evidence filed by Haringey in these proceedings, remains unclear why it was minded to reject the other options. Perhaps the driver of its approach was political’.
  • The Judges below had failed to give sufficient consideration to the terms of Haringey’s consultation, which ‘represented, as being an accomplished fact, that the shortfall in government funding would be met by a reduction in council tax support and that the only question was how, within that parameter, the burden should be distributed’. Because Haringey’s message to consultees was that ‘other options were irrelevant’ any assumed knowledge of them could not save the consultation ‘from a verdict that it was unfair and therefore unlawful’.

However, fairness did not specifically require that Haringey should have informed consultees about the existence of the transitional grant which was taken up by a number of other local authorities; see [32].

Lord Wilson held that it would be disproportionate for Haringey to be ordered to re-run its consultation when it was not minded to revise the scheme, see [33]. However Irwin Mitchell, solicitors for Mrs Moseley, have drawn attention to Haringey’s charter on consultations in their press release to argue that Haringey should choose to re-consult in the light of the judgment.

Lord Reed gave a short concurring judgment in which he expressed agreement with Lord Wilson’s conclusions but preferred to emphasise ‘the statutory context and purpose of the particular duty of consultation with which we are concerned’, see [34]. Lord Reed held at [38] that ‘ The purpose of public consultation in that context is in my opinion not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected, as the common law seeks to do. The purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authority’s decision-making process’. At [39], Lord Reed held that ‘Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme’. Lord Reed’s conclusion at [42] was that these requirements were not met by Haringey; ‘The consultation document presented the proposed reduction in council tax support as if it were the inevitable consequence of the Government’s funding cuts, and thereby disguised the choice made by Haringey itself’.

Lord Reed’s focus on the purpose of the statutory duty to consult in this case would appear to mirror the third purpose of the common law duty to consult identified by Lord Wilson, being to promote public engagement and reflect ‘the democratic principle at the heart of our society’. As such Lady Hale and Lord Clarke felt able to agree with both Lord Wilson and Lord Reed, see [44].

So what does the Supreme Court’s judgment in Moseley mean for future cases?

  • Firstly, nowhere in the Supreme Court’s judgment is there a requirement, seen in case law from the lower courts, that for the consultation to be unlawful is must have gone ‘clearly and radically wrong’. The question in every case is simply whether what fairness requires in that particular context has been done.
  • Secondly, there is a very welcome emphasis on the need for the consultation to be accessible to the people at whom it is aimed. The courts should now be less willing to accept arguments by public authorities that issues which are not addressed properly or at all in the consultation materials should be ‘obvious’ to consultees and therefore did not need to be included.
  • Thirdly, Lord Wilson expressly held that the requirements of consultation are more strict when what is being proposed is a reduction in services or the withdrawal of a benefit. Given the extent of the cuts still to come in public services in the next few years the courts must apply rigorous scrutiny to the consultations which will proceed them to determine if they are fair.

In short then, the Supreme Court’s judgment in Moseley sets up more successful consultation challenges, both generally and specifically in the cuts context. This is yet further reason why judicial review is such an important means for disabled people and other heavy users of public services to assert their rights. Anyone who considers that a current, future or recently concluded consultation may be unlawful after Moseley should seek specialist legal advice.

Care Act 2014 – first thoughts on eligibility – a ‘moderate’ success?

The regulations and guidance for the Care Act 2014 were published at the back end of last week. Taken with the government’s response to the consultation (.pdf) and impact assessment (.pdf) they easily fill a lever arch file. So much for our more accessible new system of adult social care.

Rather than make a frontal assault on this mountain of paper, I thought I’d creep up on it and take a few of the key themes by surprise – starting with eligibility (disabled people – carers to follow). My conclusion on this central issue is that although government has intended to make the new system roughly as restrictive as the present system, I’m not at all sure they have succeeded. I read the new scheme as being significantly more generous than the present ‘substantial’ band operated as the eligibility floor by the vast majority of local authorities at present. It may therefore be that the deluge of protests when the tweaked eligibility regulations were published, although fully justified, was somewhat misplaced.

When the Care Act comes in to force next April, eligibility for adult social care will be governed by the Care and Support Eligibility Criteria Regulations 2014 (see p14 of the .pdf), made under section 13 of the Act.

Taking the Act first, section 13(1) requires that ‘Where a local authority is satisfied on the basis of a needs… assessment that an adult has needs for care and support…, it must determine whether any of the needs meet the eligibility criteria’ – so there must be a decision on eligibility in each case.

Sub-section 3 then requires the local authority to consider what can be done to meet the needs of disabled people and to ascertain whether they are ordinarily resident in the local authority’s area – so triggering the duty to meet their needs in section 18.

Sub-section 7 provides that needs meet the eligibility criteria if ‘they are of a description specified in regulations’ – so the regulations are all important, as the Act itself is silent as to what the eligibility criteria might be.

Turning then to the regulations – Regulation 2 deals with disabled people’s eligibility. It imposes three requirements for a need to be eligible for support:

  1. It must arise from or be related to a physical or mental impairment or illness – unlikely to be controversial in most cases but may be a problem for some older people whose needs result from their advanced age.
  2. It must lead (in combination with any other needs) to the person being ‘unable’ to achieve two or more of the specified outcomes listed below (but ‘unable’ doesn’t really mean unable, as explained below).
  3. These outcomes not being achieved must have a significant impact on the adult’s well-being.

So 2 and 3 are the issue. Taking them in turn:

  • The list of outcomes is very broadly drawn. It covers managing and maintaining nutrition; maintaining personal hygiene; managing toilet needs; being appropriately clothed; being able to make use of the home safely; maintaining a habitable home environment; developing and maintaining family or other personal relationships; accessing and engaging in work, training, education or volunteering; making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and carrying out any caring responsibilities the adult has for a child.
  • Importantly, the term ‘unable’ in relation to the achievement of the specified outcomes does not have anything like its ordinary meaning. Under regulation 2(3), a person is ‘unable’ to achieve an outcome if they need assistance to achieve it, if they can achieve it without assistance but doing so causes them ‘significant pain, distress or anxiety’ or is likely to endanger the health and safety of the adult or another person – or even if it simply takes them ‘significantly longer’ to achieve the outcome than would ‘normally be expected’ (answers on a postcard as to how that will be measured). As such the real question is whether the disabled person experiences significant difficulties in relation to the areas of life identified in the specified outcomes – if yes, they will be eligible for support to achieve those outcomes.
  • There will be some cases where the person’s needs result in them being ‘unable’ to achieve only one of these outcomes – for example, as case like Mrs McDonald’s where the primary and perhaps sole need relates to night-time toileting. In these rare cases the local authority may have to exercise its powers to go beyond the eligibility framework in order to provide services which are consistent with disabled people’s human rights. However – most disabled people who have difficulties maintaining personal hygiene will also need help with dressing. Many disabled people who experience barriers to work will also need help to develop personal relationships (NB – the inclusion of ‘developing’ relationships as an eligible outcome is a big win for the National Autistic Society’s ‘Careless’ campaign). So in reality I’m not sure (despite the modelling that has been apparently been done) how much of an additional hurdle is created by requiring difficulties in achieving two or more outcomes rather than just one.

So how does this compare to the present picture? Under the current statutory guidance, Prioritising Need, local authorities can set their eligibility threshold at one of four bands – ‘critical’, ‘substantial’, ‘moderate’ and ‘low’. Most local authorities meet ‘critical’ and ‘substantial’ need – indeed the government’s stated intention is for the national eligibility threshold to mirror ‘substantial’.

So in order to see if this has been achieved, we need to consider the current ‘moderate’ band. The ‘moderate’ needs are as follows:

  • There is, or will be, an inability to carry out several personal care or domestic routines;
  • Involvement in several aspects of work, education or learning cannot or will not be
  • Several social support systems and relationships cannot or will not be sustained; and/or
  • several family and other social roles and responsibilities cannot or will not be undertaken.

It seems to me that a person with any of these levels of need would be likely to be eligible for care and support under the new system. Take personal care – to have ‘moderate’ needs at present you must be unable to carry out ‘several personal care or domestic routines’. So under the new system this would relate to the outcomes of ‘maintaining personal hygiene’, ‘managing toileting needs’, ‘maintaining a habitable home environment’ etc. ‘Several aspects of work, education or learning’  in the ‘moderate’ band translates to ‘accessing and engaging in work, training, education or volunteering’ – although under the new system you just have to show difficulty in achieving this outcome, not that ‘several aspects…cannot or will not be sustained’. ‘Social support systems and relationships is equivalent to ‘developing and maintaining family or other personal relationships’ – although again, there is no need to show that ‘several’ systems and relationships ‘cannot or will not be sustained’. This outcome would also cover ‘several family and other social roles and responsibilities cannot or will not be undertaken’ – although here we also have the specific new outcome in relation to disabled parents, which is very welcome.

So try as I might, I am struggling to see how a person properly assessed as having ‘moderate’ needs at present would not be deemed eligible following a proper assessment under the new system – except in the rare case where they only have one such need. In fact, it may be that many people properly assessed at present as having ‘low’ needs will also be eligible under the new system. For example, the ‘low’ personal care need is ‘there is, or will be, an inability to carry out one or two personal care or domestic routines’. If the two personal care routines which can’t be carried out are ‘maintaining personal hygiene’ and ‘managing toileting needs’ then that person’s low need will be eligible – assuming the other tests are met.

It is important to note that under ‘Prioritising Need’ (and its predecessor, Fair Access to Care Services), there is no qualification on the terms ‘unable’ or ‘cannot be sustained’ – they have the ordinary English meaning, which is a much stricter meaning that the definition in the Care Act regulations. This is another pointer that eligibility under the new system should be more generous than the existing system – if operated properly in accordance with the regulations.

This all assumes that I am correct that the main additional requirement, being that the ‘inability’ to achieve the outcome will have a ‘significant impact on the adult’s well-being’, is not a real additional barrier in most cases. This in turn assumes that there will be proper and accurate assessments of disabled people which are faithful to the eligibility criteria – a major assumption. I will turn to the new assessment duty in a later post.

What does the new Care Act guidance add to this picture? Assessment and eligibility are dealt with under chapter 6, with consideration of eligibility from 6.100, p96. Key points include:

  • A reminder that local authorities can meet non-eligible needs if they choose to do so (6.100) – though in the current financial climate this is more theoretical than real.
  • ‘Inability’ to achieve an outcome includes a situation where prompting is required; 6.106.
  • Examples of circumstances where each outcome is not being achieved are given at 6.107. As an example, ‘maintaining a habitable home environment’ is said to involve consideration of ‘whether the condition of the adult’s home is sufficiently clean and maintained to be safe. A habitable home is safe and has essential amenities.’ We will no doubt see if the courts agree with this definition of ‘habitable’ in due course.
  • Importantly, ‘significant impact on well-being’ should be considered cumulatively in relation to all the outcomes (6.109), increasing the likelihood that this threshold will be reached in any given case. The term ‘well-being’ is of course defined in section 1 of the Care Act and will be the subject of a future blog post as it is centrally important to the whole Care Act scheme.
  • ‘Significant’ is not defined in the regulations and so has its everyday meaning; 6.110. Unhelpfully, the guidance does not tell us what the Secretary of State thinks that meaning is. I would suggest ‘significant’ means ‘more than minor or trivial’ – so not a particularly high threshold.
  • 6.114 contains case study examples – the case study of ‘Dave Brown’ is an adult with autism who spends a lot of time online, is engaged in work and ‘has access to those personal relationships that he considers essential’. As such ‘Dave’ is not eligible because the difficulties he is experiencing do not have a significant effect on his well-being. This may well be correct – however it seems to me that a person with autism who was experiencing only slightly greater difficulties than ‘Dave’ would have to be deemed eligible under the new scheme – note work’ and ‘personal relationships’ meet the required two separate outcomes.
  • The eligibility decision has to discount any care that may be provided to the disabled person, looking at what needs would be if no support provided; 6.119.

So after consideration of the new scheme on eligibility I am left hopeful that, despite the apparent intention, the regulations will create a broader eligibility for adult social care than the present ‘substantial’ band. If this doesn’t prove to be the case in practice, disabled people whose needs are deemed ineligible will be able to seek redress through an application for judicial review if there is a legal issue in play – as there undoubtedly will be in many of the earlier cases.

More to follow when I’ve had a go at approaching the mountain of regulations and guidance from a different route.

Challenging childcare cuts through ‘sufficiency’ duties – a key case

I have blogged previously about the right to childcare for disabled children. Since I wrote that post, I have come across a great judgment in a case about cuts to nursery provision in a Welsh local authority. So this is a follow-up post to show, once again, that judicial review is a real remedy when unfair and unlawful cuts are made to public services.

The case is R (West and others) v Rhondda Cyon Taff County Borough Council [2014] EWHC 2134 (Admin). The issue in the case was the Local Authority’s decision to stop providing free full time nursery education for all three year old children, instead funding 15 hours a week. This is important – because it was not a case where the Local Authority got the law wrong about their minimum obligations to individual children, but instead one where the court intervened to stop a cut where there had previously been a more generous level of service than the absolute minimum required.

It was no doubt also highly important to the decision in West that the termination of full time nursery funding was going to be severely detrimental to vulnerable children. The Judge noted that in addition to losing the childcare, ‘the loss of this full-time provision will also result in the termination of free school meals and free school transport for the children concerned’ (para 2). The expectation was that 3,300 children and their families would be affected.

The challenge was brought on five legal grounds. Two failed; the decision was not taken in breach of the public sector equality duty in section 149 of the Equality Act 2010 and there had been no failure to have regard to the duties concerning child poverty under the Children and Families (Wales) Measure 2010 (this covers ‘child poverty, play and participation’ in relation to children in Wales and probably merits a blog post of its own).

The three grounds of challenge which succeeded were all linked specifically to the provision of childcare or nursery education. The Local Authority was found to have breached the following statutory provisions:

  • Section 118 of the School Standards and Framework Act 1998, which requires Local Authorities in Wales to secure that ‘the provision…of nursery education…is sufficient for their area’. (NB – the legislation.gov.uk website has not been updated since section 118 was amended by the Childcare Act 2006 so that it only applies in Wales, not England).
  • Section 22 of the Childcare Act 2006, which states: ‘A Welsh local authority must secure, so far as is reasonably practicable, that the provision of childcare…is sufficient to meet the requirements of parents in their area who require childcare in order to enable them (a) to take up, or remain in, work or (b) to undertake education or training which could reasonably be expected to assist them to obtain work’. The equivalent duty for English local authorities is found in section 6 of the Childcare Act 2006. As I emphasised in my previous post, both section 22 and section 6 contain a specific requirement on local authorities to have regard to the need for the ‘provision of childcare which is suitable for disabled children’.
  • Section 18 of the Children Act 1989, which requires local authorities to provide ‘such day care…as is appropriate’ for children ‘in need’ within their area who are under five and not yet attending school. Children ‘in need’ are defined in section 17(10) of the Children Act 1989 and include all disabled children; see section 17(10)(c) and (11).

These three duties have one important feature in common – they are all what can be termed ‘sufficiency’ duties, in that they require local authorities to have a ‘sufficient’ (or in the case of section 8 of the Children Act 1989 an ‘appropriate’) level of service in place. Parliament has become increasingly fond of sufficiency duties – they seem to be the way in which a balance is struck between the desire to achieve minimum standards and the need to allow flexibility in how local areas meet needs. However it can be argued that they do not strike the balance in the right place – because as long as the local authority has some of the required service, the court is unlikely to want to interfere with its assessment of whether that level of service is ‘sufficient’.

West shows that this analysis is not always correct. The primary error made by the local authority in West was to fail to demonstrate a proper understanding of these duties. In relation to section 118 of the School Standards and Framework Act 1998, para 38 of the judgment cites from the relevant council report, which stated that ‘our statutory obligation is to provide all children with ten hours of nursery education per week…’. While this reflected the guidance given on individual cases, it ignored the broader duty to secure ‘sufficient’ nursery education and childcare. This error was not remedied elsewhere in the materials. As the Judge held at para 44:

If members are not informed of their statutory duties then there is a real risk they will adopt the wrong approach when they come to consider an issue such as securing the provision of sufficient nursery education. That is, in my view, what happened in the present case. The Council did not ask itself the question as to what is sufficient nursery education for its area, nor, in my view, can it be inferred that it considered its duty to provide sufficient nursery education when taking the decision.

The Judge then highlighted that whether there is ‘sufficient’ nursery education is linked to what other childcare provision is available – bringing into play the childcare sufficiency duty under section 22 of the Childcare Act 2006. However the local authority’s decision documents did not refer to that duty and the relevant childcare assessments were not in front of the elected members when the decided to reduce nursery funding. As the judge held at para 57, ‘once it is accepted that childcare is a relevant issue to be considered then it has to be considered on the correct basis, that is, on the basis of a correct appreciation of the local authority’s statutory duties in that respect. That being so, proper regard must be had to the statutory guidance.’ This had not been done and so section 22 of the Childcare Act 2006 had also been breached.

The final breach identified by the Judge was the duty to provide ‘appropriate’ day care for children in need under five in section 18 of the Children Act 1989. Again, the problem was that ‘the Cabinet was not referred to its statutory duties under the Children Act and therefore had no statutory framework in which properly to consider the consultation material’. Further, there was no attempt to analyse the impact of reducing nursery funding on children in need (who include, as noted above, all disabled children).

So why does West matter? Plainly it matters because as a result of the judgment over 3,000 young children in a deprived area retain their full time nursery provision, at least until the Local Authority makes a new decision. But I would also suggest it matters more broadly, because it emphasises the strict approach the Court will take to cases where services are reduced or withdrawn in an area where Parliament has imposed a duty to secure a ‘sufficient’ supply of such services.

The reality at present is that services for disabled children are being decimated across the country as a result of local authority funding cuts. Yet there are numerous sufficiency duties that could be used to challenge these cuts. In addition to those covered in West, they include:

So in every case where cuts to services for disabled children are being proposed, the question needs to be asked as to whether the local authority is complying with its sufficiency duties – as well as other relevant duties such as the public sector equality duty. Where, as in West, these duties have not been brought to members’ attention and do not feature in the analysis of the proposals, then the decision to cut the service may well be quashed by the court. It is important to note that the Local Authority’s arguments that quashing the decision would cause chaos did not impress the Judge in West, see para 76.

Disabled people and families who consider that the cuts taking place in their area may be unfair or unlawful – and indeed all groups affected by cuts – need to take legal advice as quickly as possible. Challenges to high level financial decisions need to be brought even more quickly than ‘ordinary’ applications for judicial review; see the discussion of ‘delay’ in West at paras 70-76.

All of these solicitors with expertise in SEN and disability cases should be interested in talking to disabled people and families affected by proposed cuts about the potential to bring a legal challenge – the solicitors in West were Bindmans whose details are on my list.

I would be keen to hear about any other successful challenges to cuts using sufficiency duties, whether or not the case made it to court, in the comments below.

An illiberal attack on judicial review – the Criminal Justice and Courts Bill 2014

If the Liberal Democrats stand for anything, surely they stand for the right of the individual to challenge the exercise of state power.

It therefore beggars belief that Liberal Democrat MPs and Peers would support the government’s current attack on judicial review contained within the Criminal Justice and Courts Bill (CCJB) 2014 (.pdf). The CCJB has nearly finished its passage through Parliament. A consortium of charities is campaigning for Peers to scrap the offensive clauses in Part 4 of the Bill; see this briefing from Justice. A debate on these clauses is expected shortly, potentially next Wednesday (22 October 2014).

Judicial review is the main mechanism by which disabled children, disabled adults and those who care for them can enforce their rights. I have written previously about why judicial review provides a real remedy in SEN and disability cases. I’ve also blogged my favourite cases.

The CJCB would make this remedy far less real and effective – which is presumably the government’s intention. As Justice states, ‘The effect of these proposals will be to suppress legitimate challenge; limit judges’ discretion to act in the public interest and shield public agencies from effective oversight.’ Here is why, generally from a disability perspective:

  • Clause 70 states that if the court considers that it is ‘highly likely that the outcome for the applicant would not have been substantially different’ if the unlawful conduct had not taken place, it must refuse to grant permission for a judicial review claim to proceed – or if permission has somehow been granted, it must refuse any relief. At a stroke, this would seriously restrict public interest challenges being brought on behalf of disabled people – meaning that the claimant in every case would have to have a direct interest in the decision or policy being challenged. Given the abject situation many disabled people and families find themselves in, this is a wholly unfair and unnecessary barrier to access to justice.
  • Clauses 71-72 seek to penalise unsuccessful judicial review claimants and charities and other NGOs who support test cases and other litigation. They will affect, for example, family and friends who cover some of a disabled person’s legal costs. They even raise questions as to whether lawyers who act pro bono (free of charge) could be pursued to pay the other side’s costs if the claim fails.
  • Clause 73 was described by several speakers at the recent Public Law Project conference as ‘the death of intervention’. At present, charities and NGOs regularly intervene in important cases to help the court to address the wider issues in the case. By way of example, I was instructed by Mind and the National Autistic Society to intervene (with Ian Wise QC) in the Supreme Court’s hearing of the Cheshire West appeal concerning the definition of ‘deprivation of liberty’. Lady Hale described the intervention as ‘useful’ and confirmed that the matters which the charities said were irrelevant to that test should not be taken into account. See the NAS press release for a summary of the judgment and why the intervention matters. More recently, permission to intervene has just been granted by the Court of Appeal to the charity Just for Kids Law in a case considering whether young adults involved in criminal proceedings as children should continue to benefit from anonymity – the appeal will be heard in November. Yet if clause 73 goes through, the rules on costs it contains will make it practically impossible for any charity to intervene in any case. This is because there will be a presumption that the intervener will have to pay the costs of the other parties incurred by the intervention – which could be thousands of pounds. It is highly unlikely that trustees would be able to justify such expenditure by a charity. Again, at a stroke this clause will deprive the court of the benefit of the wider experience and expertise that charities can offer in cases involving the rights of vulnerable groups.
  • Clauses 74-76 undermine the right of the court to make a ‘protective costs order’ – an order which limits the costs liability of a party to judicial review proceedings (for example a local disability charity bringing a challenge to cuts to short break provision) in the event that the claim fails. One of the most offensive aspects of these clauses is the proposed rule that a PCO would only be available once permission to apply for judicial review is granted. This will mean that a claimant who does not have the benefit of legal aid is forced to issue proceedings and incur the costs of the state preparing its initial defence without any protection from the court. In many cases this will be simply impossible. For a recent case which could not have been brought without a PCO from the outset, see the challenge by the Children’s Rights Alliance for England to the Justice Secretary’s refusal to tell young people previously held in Secure Training Centres that there had been systemic breaches of their human rights by the use on them of unlawful restraint. The challenge by CRAE failed but the case was undoubtedly properly brought, as shown by the careful judgments of the High Court and Court of Appeal. How can it be in the interests of justice for challenges like this to be cut off from the outset? In the CRAE case, there was no way an individual young person could bring the claim funded by legal aid because the whole point of the case was that young people were not aware that their rights had been breached.

There is an extremely illiberal thread connecting these clauses. This thread is the idea that it is acceptable for the executive, being one participant in the judicial review process, to rig the rules for its benefit. Although the clauses will be debated by Parliament they will be whipped through by the parties who run the executive. An even more blatant attempt to stack the cards in the executive’s favour is contained in clause 74(9), which allows the Lord Chancellor (a government Minister) to define what is in ‘the public interest’ for the purposes of the court’s determination of an application for a PCO.

The issues covered by these clauses are all matters which should properly be left to the court’s discretion on the facts of each case. The court is perfectly capable of deciding for itself who should be allowed to intervene in cases, when permission or relief should be granted or whether a claimant should have the benefit of a PCO. The clauses in the CJCB are a nasty attempt to tie the court’s hands and engineer decisions which favour the government in every case. They will have – and are intended to have – a chilling effect on access to justice for vulnerable groups, including disabled people and their families.

Our best hope is that the minority party which professes a commitment to liberal values will recognise its error at the eleventh hour and refuse to support this part of the Bill. How can we make this happen? Well, if anyone lives in the constituency of a Liberal Democrat MP, please express your views fully and frankly to them – using Write to Them, or via their constituency office / surgery. You can also use Write to Them to contact Liberal Democrat Peers. A series of amendments have been tabled by Lord Pannick which Peers of all parties should be encouraged to support.

Further information on the CJCB clauses is in the joint charities’ briefing. As the charities note, ‘There are serious concerns about the constitutional implications of making it harder for those without means to challenge public decision making’. Put less politely, these proposals are offensive to the rule of law and wrong in principle.

There may be ways around these measures if the CJCB goes through unamended, as Michael Fordham QC suggested at the Public Law Project conference. But the Parliament of a liberal democracy should never facilitate the executive’s attempt to rig the game in its favour like this. It should not be left up to the judges to undo the wrong Parliament is about to create. We can only hope that this is one of the moments where the Liberal Democrats remember their intention to exercise a restraining influence within the present coalition.

Direct payments – don’t get fooled by personalisation

I’m sceptical about personalisation. The principle of disabled people and families having choice and control over care arrangements is unarguably right. However in practice I see personalisation delivering two bad things. Firstly, personalised approaches are used to transfer risk and responsibility for care from the state to disabled people and their carers. See the brilliantly titled paper by Prof Luke Clements, ‘Individual Budgets and irrational exuberance’. As Mark Neary put it yesterday in his alternative social care dictionary; ‘Personalisation – Phew, got rid of another annoying statutory duty.’ By way of example, people who use direct payments to employ their own Personal Assistants must make arrangements for tax, National Insurance contributions and statutory sick and maternity pay – as they become employers. Is that something most people would want to take on?

Secondly, personalisation is used as a cover for cuts. It seems to be far easier for local authorities to tell people their personal budget is being reduced by 20% than to tell them that the service they were receiving on five days a week is now only to be provided on four. It’s even easier to change the way your Resource Allocation System generates an ‘indicative’ budget (more on RASes below) to reduce this figure in a way that disabled people and families will struggle to understand. None of this is lawful if the service / funding is being provided in discharge of the CSDPA duty, because the CSPDA requires eligible needs to be met in full – but that doesn’t stop it happening across the country.

Saying all this though, I recognise that for some disabled people and families with disabled children the right to a direct payment has led to a massive improvement in their lives. Despite all the rhetoric of personal budgets, to my mind it is direct payments which still matter – they are the mechanism by which money actually moves from the state to disabled people and families. In the best areas, direct payments have killed the culture of the one-size-fits-all service which previously existed and led to real innovation in the services available to disabled children and adults. In the best areas.

Personalisation is often seen as a law-free zone. In Control once published a paper with the (in my view) shocking title ‘Don’t be fooled by the law. However unsurprisingly the allocation of state resources to individuals through direct payments is in fact covered by a significant amount of law and guidance. I’ve already written about the new SEN direct payments under the Children and Families Act 2014. The problem with these is that, in short, the local authority is not allowed to make an SEN direct payment if to do so would lead to additional costs. In health, there is a new right to a personal health budget from 1 October 2014 for children and adults who are eligible for NHS continuing healthcare – but as far as I can tell it is up to the NHS in every case whether to make a direct payment. See para 7.2 of this guidance on the right to have a personal health budget which suggests health direct payments can be refused if they are ‘impracticable or inappropriate’. The detailed guidance on health direct payments confirms that health direct payments can be made when they are appropriate for the individual and represent value for money – but this does not mean that in any case they must be made.

So the right to a direct payment is most real in social care – and works in essentially the same way for disabled children and disabled adults. Links to the law follow – with the usual health warning that some may not have been updated with relevant amendments. The links should at least give the basic statutory scheme.

The key statutory provision (until next April at least when the Care Act 2014 comes into force for disabled adults) is section 57 of the Health and Social Care Act 2001, which requires that direct payments must meet the ‘reasonable cost of securing’ the necessary service. The duty to make direct payments when services are being provided to disabled children stems from section 17A of the Children Act 1989. Adults who lack capacity in relation to relevant decisions about direct payments now have a right to them under section 146 of the Health and Social Care Act 2008.

Under the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009, social care direct payments essentially must be offered in any case where the disabled person or family is capable of managing them, either alone or with available help. The way in which social care direct payments should operate is governed by statutory guidance with the snappy title Guidance on direct payments for community care, services for carers and children’s services: England 2009.

From this statutory scheme we can construct some answers to questions that might arise where local authorities neglect the fact that the right to direct payments is carefully defined in law. Here are some of the questions that I have been hearing recently about direct payments, and my general answers – although of course, any individual case needs careful fact-specific advice:

  1. Do I have to accept a direct payment? No. Direct payments are a right in social care (absent exceptional circumstances) but they are also a choice. If the disabled person or family don’t want to deal with a direct payment, they are entitled to say that they would prefer a service to be provided to meet the eligible needs. Of course, they will then need to negotiate with the local authority as to what service is to be offered – and providing it meets the need, the local authority is not obliged to fund a more expensive service when a cheaper one is available. However no disabled person or family should ever be forced to accept a direct payment. See the guidance at para 15; ‘A person does not have to accept direct payments; if they wish, they can choose instead to receive services that are provided or arranged by the
    council.’ The guidance emphasises the need for support services and advocacy so that the choice as to whether to have a direct payment is a fair one in every case.
  2. How should the amount of direct payment be set? Direct payments should be set in each case at the amount that the local authority considers will meet the reasonable cost of securing the necessary services for that person. That assessment by the local authority has to be informed by the evidence, including the assessment and the service plan, setting out what services the authority considers would be sufficient to meet the eligible needs. In order to comply with the statutory duty the local authority has to assess the disabled person’s needs, determine which are eligible for support, decide which services would be sufficient to meet those needs and then work out what that package of services would cost. That is the sum of money which should be offered as a direct payment – although of course what the disabled person or family choose to buy with that money is (within reason) up to them (see below). See the guidance at para 111 onwards for more detail about how the amount of direct payments should be set. Importantly the guidance emphasises at para 114 that ‘councils should include associated costs that are necessarily incurred in securing provision, without which the service could not be provided or could not lawfully be provided’ – for example recruitment costs, National Insurance or VAT. If you’re going to take on the state’s employment responsibilities it’s reassuring to know the state is obliged to fund them.
  3. Can a local authority have a fixed direct payment rate with no exceptions? No. Local authorities can’t ever operate blanket policies (unless the policy just reflects a legal rule) – they must always at least consider exceptional cases. However here we have a clear statutory duty which states that the amount of direct payment must mirror the cost of services to meet the individual disabled person’s needs. So a local authority could not have a fixed hourly rate of (say) 9.50 per hour for a carer – because some disabled people may need a more specialist service with greater cost. In my view it is doubtful whether even a typical rate with more allowed in exceptional cases is lawful, because this may not allow the case-specific focus which the law requires.
  4. Can a local authority use its RAS to determine the amount of money offered as a direct payment? No. Prior to the Supreme Court’s judgment in KM v Cambridgeshire CC, in my experience local authorities were routinely using their Resource Allocation Scheme (RAS) to determine the amount to be paid by way of a direct payment in any particular case. A RAS, put shortly, is a mechanism by which needs can be translated into sums of money using the rough cost of meeting similar needs in the area. What this skips out is the essential step of working how much it would cost to provide services to meet the particular needs of the individual disabled person. This is why the Supreme Court in KM made clear that RASes can only be used to create a ‘starting point’ or ‘ballpark figure’ – more formally, an ‘indicative allocation’ at the start of the process. So the RAS could generate a sum of say 120.00 – but the essential next step is to develop a support plan to see how much it will actually cost to meet the disabled person’s needs and then (inevitably) increase the sum allocated to comply with the legal duty. See a detailed critique of the use of RASes by Prof Luke Clements and Lucy Series for more reasons why their use is problematic – but confined to the role prescribed by the Supreme Court in KM their use is lawful.
  5. Can a local authority refuse to allow direct payments to be spent on anything other than personal assistants? No. The whole point of direct payments is to allow flexibility in the way in which care is provided and arranged. As the statutory guidance says ‘a direct payment gives the service user flexibility to look beyond ‘off-the-peg’ service solutions at options that may include employment, education and leisure activities as well as personal assistance to meet their assessed needs.’ It is totally unacceptable in 2014, when direct payments have been around since 1996, that local authorities still seem to be asserting unlawful limits on direct payment expenditure. See also para 14 of the guidance; ‘Direct payments do not have to be used in the same way as if support was being provided directly by the council. Indeed, they are intended to give the individual the maximum degree of choice and control over how their eligible
    needs are met.’ Finally see para 90; ‘In discussions with individuals about how their needs might be met through
    direct payments, councils should be prepared to be open to new ideas and be as flexible as possible’ and para 92, ‘Conditions [on the use of direct payments] should be proportionate and no more extensive, in terms or number, than is reasonably necessary.’ So why are these rigid rules about what direct payments can be spent on still in place?
  6. Does a direct payment have to be enough to cover things like transport and activity costs? Generally, yes. To repeat – the amount of direct payment should meet the reasonable cost of securing the necessary service to meet the disabled person’s needs. So if the service is intended to meet a disabled person’s needs in relation to social isolation, the ‘necessary cost’ of securing this service will include the cost of getting there and the cost of securing admission. Both transport and activity costs are covered by the CSDPA duty and so must be met where this is necessary to meet the person’s needs. The guidance helpfully emphasises that ‘Some people might use their direct payments to facilitate better social inclusion, others to aid their general well-being, for example through fitness classes or arts and cultural activities.’ The only situation where a direct payment need not cover these costs is if the local authority can reasonably conclude that it is not necessary for it to provide these services because they can be met another way. However that would need to be a rational decision based on the evidence in a particular case. For example, a blanket policy that transport costs will not be met via a direct payment because they can be paid for through state benefits will be unlawful.
  7. Can the local authority refuse to allow direct payments to be spent on a particular service on grounds of risk? Yes – but only if there has been careful assessment in the individual case. As the guidance emphasises at para 97; ‘Support planning involves allowing people to make their own informed decisions – including decisions about risk. Councils have a responsibility to ensure that, wherever possible, the choices made by the individual are respected and supported. The benefits of increased autonomy and social inclusion may have to be weighed against the risks associated with particular choices.’ This reflects the requirement to respect disabled people’s rights to private life, dignity and autonomy under Article 8 ECHR.
  8. Does there still need to be a care plan when support is being provided via a direct payment? Yes. See the guidance at para 98; ‘Councils are reminded that there should always be a care plan, a written copy of which should be given to the individual. This advice applies equally where people direct their own support or where the council directly
    provides or arranges services.’ There is an obvious reason why this is so important – if there is not a written plan setting out which services the local authority considers necessary to meet the person’s needs, how can anyone tell whether the amount of the direct payment is sufficient?

I hope this myth-busting exercise is some help. If personalisation is going to have benefits for disabled people and families as a policy approach it needs to be operated in accordance with the law. Disabled people and families must not get fooled by personalisation. Whether eligible needs are met through services or money the law requires that they are met properly and in full.

Please post any comments and general questions about the law on direct payments below and I will address those which are not case specific. For case specific issues I suggest contacting a specialist solicitor. While low level disputes around direct payments should be resolved through the local authority complaints process, serious disputes may require an application for judicial review.

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