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: November, 2014

The Bubb report – forget boat rocking, we need boat breaking

As you may have noticed from the blanket media coverage it received, the report of the Transforming Care and Commissioning Steering Group, chaired by Sir Stephen Bubb of ACEVO, was published yesterday (Wednesday 26 November).

Is the issue the Bubb report covers, the need to transform the commissioning of services for ‘people with learning disabilities and/or autism’ important? Of course, it’s absolutely critical if we want to stop disabled young people dying in state ‘care’. Does this report merit such a level of attention? No; in my view it is in no way likely to lead to the change that is required.

To justify this criticism we need to step back a moment and consider the scale of the problem. Is is now generally accepted that people with learning disabilities ‘and/or autism’ should not be in institutions. Yet thousands are; whether in the kind of formal institutions which go by the name of ‘Assessment and Treatment Unit’, or in informal settings which might call themselves care homes or ‘supported living’ but do not support the person to be a part of their community and society (see the ‘We Have The Right’ statement from people with learning disabilities working with CHANGE at Appendix 2 to the report). In the worst cases, like Connor’s case or Stephanie’s case, people in these institutions die.

What is the proper response to this situation? In my view it must be actual system change. The title of this blog post is taken from a comment on Twitter by the wonderful @Ermintrude yesterday, shortly after the Bubb media deluge began. Forget boat rocking, we need boat breaking. This is very similar to something else said on Twitter by a professional a while back – the system is so broken that people are dying.

The truly radical solutions are out there. For example, we could give every disabled person in an institution a guaranteed personal budget, with a minimum level of funding fixed generously for a long period so that a proper bespoke package of ‘care in the community’ can be commissioned for them – as Chris Hatton has suggested along with lots of other brilliant ideas in this post.

So how does the Bubb report measure up? Well in my view it comes nowhere close to the kind of approach which might actually achieve real change. It is simply more of the same – more encouragement to commissioners to commission decent services, more support to providers, more non-specific focus on the ‘rights’ of disabled people and families. Chris Hatton has explained brilliantly and at great length why the report is so inadequate. As #IagreewithChris I’m not going to waste your time repeating his criticisms – but please do read them.

I want to focus on two related things – the tone of the report and its recommendations relating to the law.

Turning first to the tone – in my view the Bubb report doesn’t begin to address the outrage of present practice in this area. For a shining example of the right tone, check out this blog from Alicia at the Housing and Support Alliance, responding to the inquest verdict in Stephanie Bincliffe’s case. Alicia’s main point seems to me to be this – if you aren’t capable of commissioning or providing care which respects disabled people’s human rights then go and get another job.

As Neil Crowther puts it on his blog, ‘The difference between institutionalisation and independent living is the difference between abusing human rights and respecting them.’ Where human rights abuses are going on people perpetrating them need to be told to stop doing so in simple terms – not offered a range of incentives to encourage them to do things properly. As Neil says, ‘We need to name this treatment for what it is: not poor quality care as though we were simply talking about a matter of customer service. Such experiences amount to the gravest of human rights violations.’

Sir Stephen’s report suggests at 1.5 that ‘there are doubts about whether the rights of people with learning disability (not ‘and/or autism’ this time) are being respected in practice as originally intended’. No there aren’t – there is no doubt that they are not. How many deaths would be necessary to remove any doubt?

So given that grave human rights violations are being perpetrated, what does the Bubb report say about the law reform that might stop this? Answer – not much – 3.5 pages to be precise. There are four recommendations under the heading ‘Strengthening Rights’ – set out in bold below, taken word for word from the report, with my comments following:

  1. The Government should draw up a Charter of Rights for people with learning disabilities and/or autism and their families, and it should underpin all commissioning. This isn’t about strengthening rights at all – it’s about making people aware of their existing rights. This is a good thing – but it doesn’t address the bigger issue, which is whether those rights are sufficient. I don’t think they are – and nor do the hundreds of disabled people, family members, professionals and allies that have pledged their support as individuals and organisations for the principles of the draft LB Bill. Nor does publishing a Charter do anything to actually make the rights contained within it real. For rights to become reality disabled people need access to advocates and lawyers, the latter funded by legal aid. The Bubb report has nothing to say about the mechanics of rights enforcement – other than noting at 1.4 how important access to an advocate or lawyer can be. Where is the analysis of whether the right to advocacy in the Care Act 2014 will address the problem from next April?
  2. People with learning disabilities and/or autism should be given a ‘right to challenge’ their admission or continued placement in inpatient care. People already have a right to challenge unlawful placement decisions – it’s called the right to apply for judicial review. The issue is on what legal basis such a challenge could be brought. This is why clause 4 of the draft LB Bill proposes that the state should be required to make the ‘most appropriate’ living arrangements for any person who is being moved from their home. We are suggesting that the law should require that in reaching this decision the starting point should be what the disabled person themselves wants. A disabled person or family member could then challenge in court the decision of the Local Authority or NHS as to which arrangements would be ‘most appropriate’. Sir Stephen’s ‘right to challenge’ goes some way towards this. It is said at 2.2 that ‘the review triggered by this right to challenge would only recommend admission/continued placement in hospital [note – only in hospital, apparently] if it concluded that the assessment, treatment or safeguarding could only be effectively and safely carried out in an inpatient setting.’ My concern is that this medical approach would lead to disabled people’s own wishes and feelings being ignored. The right to challenge in the Bubb report therefore seems to me to be less of a right that the best interests duty already imposed by section 4 of the Mental Capacity Act 2005, which following the Supreme Court’s judgment in Aintree University Hospital v James already requires significant weight to the views of the disabled person (although not enough weight – see LB Bill clause 7 for what we suggest it should say). I also note that that in the Bubb report at 2.3 it is suggested that where disabled people do not ‘feel able to challenge the decisions taken regarding their care’ this is a role for commissioners. This is, with respect, hopeless. It is the commissioners who have responsibility for arranging inappropriate care in the first place. The proper response to this problem has to be highly skilled independent advocacy for the disabled person coupled with real support (including legal support) for family members.
  3. NHS England should extend the right to have a personal budget (or personal health budget) to more people with learning disabilities and/or autism, along with support to manage those budgets. No problem with this – although personal budgets are only useful to the extent that sufficient services are available in the community to buy with them (see draft LB Bill clause 3).
  4. The Government should look at ways to protect an individual’s home tenancy when they are admitted to hospital. This is an excellent idea – but isn’t it a function of a report such as this to make recommendations as to how this should actually be done, not merely to flag it as an idea for further consideration?

The legal section of the Bubb report is therefore rather like the rest – more of the same, rather than any kind of prescription for radical change. It also appears to suffer from the absence of specialist legal input. There is no proper consideration at all of the current legal framework and the levers it creates – for example, as Chris Hatton has noted, where is the read-across to the Autism Act 2009? This omission is particularly surprising as the Government is currently consulting on revised statutory guidance, which is how that Act gets any teeth. There is no consideration of the dysfunctional interface between the NHS and social care, or the impact of the fragmentation of the NHS under the Health and Social Care Act 2012, or of how either of these elephants in the room could be addressed.

Sir Stephen was properly criticised for his failure to engage with disabled people in the production of his report – although it appears some steps were taken on this. It’s a shame though that he doesn’t appear to have involved any lawyers – a group not normally noted for their social exclusion.

If you share any of the frustrations I have expressed above about the Bubb report, please visit the LB Bill blog and tell us how you think the law should change so the boat doesn’t just rock but finally breaks. We are thinking hard now about all the ways the second draft of the Bill could be improved. One idea which self-advocate Andrew Lee put forward very strongly at the fantastic meeting with disabled people’s organisations last week was that individuals and organisations need to be punished when things go badly wrong. Please share your thoughts on this and any other ways in which you think the law could and should change.

The group working on the Bill also met the Minister last week and it is clear the Government are listening. As well as promoting the Bill, we all have a chance to influence the Government’s ‘Green Paper’ (proposals for legal changes) which should come out in the new year – and will hopefully go way beyond the Bubb report.



Challenging the coming cuts to children’s services budgets

Things feel pretty bad in children’s services already, but they are about to get much worse. The cuts to local authority budgets to date have resulted in significantly greater reductions to adult social care than to children’s services. But with local authorities currently working on their 2015-16 budgets, children’s services are now in the firing line as any further cuts to adult social care would leave councils clearly unable to comply with their statutory duties.

To give two examples from very different parts of the country:

It is undeniable that local authorities are being placed in an increasingly difficult position by the swingeing cuts imposed on them by central government. However there are still choices to be made:

  • Some councils still have significant ‘reserves’ – funds in the bank not allocated for a specific purpose. While it is obvious that reserves can only be spent once, councils should at least be considering using reserves to mitigate the worst impact of the cuts on vulnerable groups such as children. It will be misleading (and in my view unlawful) for councils to suggest in their consultations that they ‘have’ to cut budgets when they have significant reserves in place. This was one of the errors made by Haringey in their consultation on the local council tax reduction scheme, as shown by the Supreme Court judgment in Moseley v Haringey.
  • Councils are entitled to raise council tax. I understand the problems with this – including that (i) council tax is a regressive tax that hits poorer people proportionately harder than richer people, (ii) the benefit which meant the poorest residents didn’t have to pay it has been abolished so even those whose sole income is state benefits have to pay some of their council tax liability and (ii) council tax would need to be raised significantly to replace the cuts from central government. However raising council tax remains a choice which councils can consider as an alternative to cuts. Any council which wants to raise council tax to any significant extent needs to hold a local referendum – which would be an opportunity to give local residents a choice about whether they are prepared to pay more tax to fund children’s services. We shall see if any council is willing to ask this question.
  • Most fundamentally, councils have a choice about which services they cut to make budgets balance. A saving of (for example) £1.75m compared with £1.85m in a disabled children’s budget area means more services available for children and families. The question which always strikes me is whether cuts are being targeted at groups least likely to complain and take legal action. How many local authorities are proposing reduction to the road maintenance budgets or bin collections – the things which matter most to residents without specialist needs for services?

It is important to bear in mind that local authority budgets are only estimates of expenditure. A local authority still has to comply with its statutory duties no matter what budget it has set. However the nature of many of those duties – for example the key duty to provide disabled children with social care services in the CSDPA 1970 s 2 – are heavily influenced by the amount of money which the authority says it has available at any given moment in time. And in the real world, the legal obligations are less important than the amount of money which the Director of Children’s Services has in his or her budget to actually provide services.

So proposed budget cuts to children’s services need to be challenged. Where the cut is arguably going to lead to the local authority being unable to comply with its statutory duties – for example the various duties in relation to short breaks – this must be pointed out. Local groups can and should respond to the consultations. But I also suggest legal advice is taken from specialist solicitors at an early stage – because challenges to financial decisions need to be brought even more promptly than other judicial review cases. If the consultation process is unlawful it may be possible to bring a legal challenge before the final decision is taken. So the earlier advice is sought once cuts are proposed, the better.

Two key grounds of challenge to financial decisions are likely to be consultation and the public sector equality duty (PSED). The Supreme Court’s judgment in Moseley shows that a high standard of fairness is required in consultations which propose cuts to benefits or services. In particular, consultees must be provided with sufficient information about the proposals to make an informed and intelligent response – which is likely to include information about alternative options which were considered and rejected prior to the consultation. How many consultations on proposed budget cuts taking place at the moment include any information about alternatives?

In relation to the PSED (Equality Act 2010 s 149), the key case is now the Court of Appeal’s judgment in Brackingthe successful challenge to the decision to close the Independent Living Fund (judgment in round two of that litigation is currently awaited from the High Court). The Court of Appeal helpfully summarise the legal principles governing the operation of the PSED at para 24 of the judgment. However the two key principles to emerge from the case (in my view) are these:

  • Decision makers must have a proper understanding of the impact of cuts decisions on disabled people and other groups with protected characteristics (eg children) when they make cuts decisions. Astonishingly, the Court of Appeal held in Bracking that the Minister for Disabled People did not properly understand the impact of her decision to close the Independent Living Fund on the disabled people affected when she took her decision.
  • It is necessary for decision makers to consider the particular needs set out in the PSED – for example the need to advance equality of opportunity for disabled people – in their decision making, not just refer generally to the impact once this has been understood.

Challenges to financial decision making are difficult – but not impossible. To end on a high note, I’d emphasise again the decision of the High Court in W, M and others v Birmingham CC the successful challenge to Birmingham’s decision to move to ‘critical only’ adult social care. In that case, both the budget cut and the resulting social care policy were held to be unlawful by reason of breaches of the PSED and failure to carry out a lawful consultation. The sums of money at stake in the Birmingham case were huge – the cuts proposed were £33.2 million in the first year and £69.1 million in the second year. Yet this did not stop the court from allowing the application for judicial review – and to this day Birmingham continues to meet ‘substantial’ needs.

As Mr Justice Blake said in Rahman, another successful challenge to cuts in Birmingham, ‘Even where the context of decision making is financial resources in a tight budget, that does not excuse compliance with the PSEDs and indeed there is much to be said for the proposition that even in the straightened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater.’ (para 46)

The times are about to get as straightened as they have ever been. I have a good deal of confidence that the courts will continue to take a robust approach to unfair and unlawful cuts – if cases are brought before them, which requires disabled people, children and young people, families, local and national groups and lawyers to work together.

Please post details (including links if possible) of any proposed cuts to local authority budgets affecting children – or disabled adults – in the comments below. It would be good to build up a picture of the cuts proposed across the country.

Easier read – #LBBill – the first draft

Thanks as always to Anne at Barod for these easier words.

We have written our first ideas for #LBBill. This is called a draft.

You can read the draft on the #LBBill blog including the Easy Read version.

A big thank you to Change, Alicia and Dave for the Easy Read draft.

We need people to say what they think about the draft #LBBill.

We know the Bill must:

  • Make it the law that disabled people have a right to be part of their community
  • Make it harder for anyone to be forced to go away from home.

It is a bit like the Care Act 2014. But #LBBill is about all services including health, not just adult social care. And we don’t mind who provides a home and support. The important thing is that it is their home in their community.

Here are 4 important things from the draft #LBBill:

  • The Government must give people the right support in their own home. #LBBill stops services saying it costs too much to support someone at home. #LBBill says people must be able to get the right support locally. #LBBill says that what a disabled person wants is what is most important.
  • #LBBill says the disabled person, or their parent or the court must agree before someone is moved from their own home. #LBBill says the Secretary of State must be told when this happens. #LBBill says there must be a report every year to say how many people have to move from their own home.
  • #LBBill says the Mental Capacity Act needs changing. It must be changed so the disabled person and their family must have their say before anyone says the disabled person cannot make a choice. And if the person cannot make a choice, their family must have a say about what is best for the person.
  • #LBBill says the Mental Health Act also needs changing. It must be changed so it cannot be used just because someone has autism or a learning disability. The Mental Health Act should only be used if someone has autism or a learning disability and a mental illness.

What next?

These are the ideas in the first draft.

We need to know what you think. We need your ideas.

Then we can write a better draft.

Please talk to us on the LBBill blog or on Twitter or Facebook (#LBBill).

Please show your support for #LBBill .

The LBBill blog has links to help you do this.



#LBBill – justice for all the dudes – thoughts on first draft

The first draft of #LBBill has now been published and is available on the Bill blog. You can check out all my previous posts about the Bill for some background on both the content and the process.

We are all delighted to get to this point. We are particularly pleased to have such fantastic Easy Read versions – huge thanks to all at CHANGE for the images and formatting and to Alicia and Dave for the words.

This first draft is very much a start of the discussion about how the law needs to change. However we are clear about the two linked things we think the Bill needs to do:

  • Make a legal reality of disabled people’s right to be fully included in their communities.
  • Make it harder for the state to force disabled people to go away from their homes where this is against their wishes and / or the wishes of their families.

So what do these first ideas – crowdsourced as George Julian wrote in Community Care – come down to? In short the draft Bill contains one principle and three sets of ideas.

The principle is that in everything the state does it should pay regard to the need for disabled people to be fully included in their community (clause 1). There is an obvious link here to the well-being principle in section 1 of the Care Act 2014 but the #LBBill principle is broader – not least in applying to all health bodies and children’s services as well as adult social care. We are not obsessed with bricks and mortar; what seems to matter to us is not whether something is called a ‘care home’ but whether disabled people get to be a part of ordinary life going on around them in their communities.

The three ideas can be summed up as follows:

  1. Duties on the state to support disabled people properly at home – and to make sure any living arrangements made are the ‘most appropriate’ available for them. Clause 2 stops the state capping the cost of care at home by reference to the cost of residential care. Clause 3 requires the state to ensure that there is a sufficient level of support available in every local area to meet disabled people’s needs. Clause 4 is the ‘most appropriate’ living arrangement duty – requiring that disabled people’s own wishes and feelings are given top priority when this duty is in play. There is also an important requirement that living arrangements made by the state are reviewed at least annually to make sure they remain the ‘most appropriate’ available.
  2. Approval and reporting duties in relation to ‘residential’ living arrangements, designed to shine a spotlight on these cases and make sure no-one gets forgotten. We want to define ‘residential’ to include any situation where a person is moved from their own home – including certain types of supported living placements like those Mark Neary has written about as ‘modern warehouses’. Clause 5 requires advance approval for any such placements – whether from the disabled person, their parent or the court as appropriate. Clause 6 requires anonymous reporting of all such placements to the Secretary of State which will then be published in an annual report so the level of ‘residential’ placements can be tracked over time.
  3. Changes to the Mental Capacity Act 2005 (‘MCA’) and the Mental Health Act 1983 (‘MHA’) to make them work better for disabled people and families. Clause 7 amends the MCA to require proper consultation with disabled people and families before a finding of incapacity is made in relation to any decision, to ensure disabled people’s wishes and feelings and human rights are at the centre of all best interests decisions and to create a presumption of consultation with families in best interests decision making. Clause 8 – simple but controversial – removes people with autism and learning disabilities from the scope of the MHA unless they have a secondary mental illness. Although we appreciate that the MHA offers some safeguards to disabled people and families, this recent case at the European Court of Human Rights seems to illustrate perfectly why these safeguards don’t work for disabled people (see in particular para 8).

So these are the first ideas. In my view taken together they would make a real difference to the lives of disabled people and their families, particularly those at risk of going into an institutional setting. However I’m convinced these first ideas shouldn’t be the last ones, in that there are undoubtedly more and better ideas which Justice for LB supporters can help us with in the coming weeks and months. If anyone has any ideas for ways we can discuss the draft Bill please let us know via the LBBill blog or on Twitter or Facebook (#LBBill).

I can already see ways the Bill can be improved – from the macro level (we need to incorporate more fully the words of Article 19 of the UN Declaration on the Rights of Persons with Disabilities, the right to independent living) to the micro level (Deputies under the MCA should have the right to approve residential living arrangements and this needs to be included in clause 6). I look forward to hearing all the other suggestions and improvements I am sure will come now the first draft is out.

At the same time as telling us how the draft Bill can be improved, please use the links on the LBBill blog to show your support for the Bill, including using Writetothem to email your MP.



Legal Essentials for Charity Activists – why campaigners need to understand the law

This post is a blatant plug for a training day I’m running with Irwin Mitchell solicitors on Monday 17 November. It also explains why in my view it is essential to have a basic understanding of how the law works to be an effective activist or campaigner – so it is hopefully of some wider interest. But do please come to the training if you can, it’ll be ace.

I’ve blogged previously about why charities need to employ more lawyers to support their advocacy work. On the flip side – there is no reason why anyone involved in advocacy or campaigning activity (whether for a charity or otherwise) should not gain a working understanding of legal essentials. The law is often seen as a type of modern magic – something written down in learned tomes which only a certain few can understand. This is obviously nonsense – it’s just words and ideas, some more complicated than others but none incomprehensible, no matter how hard us lawyers try.

Indeed I simply don’t understand how anyone can properly represent their cause in Parliament without knowing the different sources of law and how they can be used and influenced. Having been a campaigner for seven years before qualifying as a barrister, I know you can pick a lot of this up as you go on. However the information you get this way is patchy and it’s generally coming from the ‘other side’ – often as Ministers, officials or MPs tell you that there are legal reasons why the change you are looking for cannot be achieved, which may well not be the case.

So we came up with the idea that we should put on a ‘legal essentials’ training day for charity activists. The day won’t cover the substantive law in any particular area – there are loads of opportunities to hear people talk about legal developments in a particular field, for example the new Care Act governing adult social care (unsubtle trailer for future training plug). Instead we are going to look at some key legal nuts and bolts, including answering the following questions:

  • What is the difference between powers and duties – and how do you identify the key duties which give rise to proper rights? (case studies – section 17 Children Act 1989 and section 2 of the Chronically Sick and Disabled Persons Act 1970)
  • When is guidance binding – and what does ‘statutory’ guidance really mean? (case study – National Framework for Children and Young People’s Continuing Care)
  • What are the key ‘common law’ duties, who makes them up (answer – Judges) and where do they come from? (case study – the duty to consult and the Supreme Court’s judgment in Moseley v Haringey)
  • How can you use international human rights instruments and what legal force do they have? (case studies – children’s best interests and Article 3 of the UN Convention on the Rights of the Child / the right to independent living for disabled people under Article 19 of the UN Convention on the Rights of Persons with Disabilities)

This this the full list of topics we intend to cover. The intention is that anyone who comes on the training should leave with a proper understanding of the sources of law and how to make them work to support their cause. Most of the case studies will look at children’s rights and disability rights examples – but the training should be useful no matter what area you work in. If you book on, we will ask you if there are any particular themes or topics you would like us to discuss.

We are charging for the training, but we don’t want cost to prevent anyone coming who would find it interesting and useful. As such we have put the costs into tiers according to the size of organisation – the cost for small organisations is £50. We also have limited number of free places for individuals and for organisations without funding. These are particularly targeted at disabled people and carers but we will consider any applications. Contact details and the booking form are on the flyer.

Do join us for the training if you can. If you can’t but would be interested in coming if we run it again next year, please let us know in the comments below. I’d also be very grateful for examples of how campaigners and activists have used the law in their work.

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