Why now is the time to engage with the next round of cuts

Two news stories that have popped up on my feed this morning highlight that now is the time for campaigners and local groups to start engaging with the next round of local cuts, for the financial year April 17-March 18.

Firstly, Essex is apparently consulting on potential cuts to children’s centres.

Secondly, Dorset is said to be considering a range of cuts to adult social care.

I have no doubt there are or will be similar stories across the country in the local media this week or in the near future. Local authority budgets are complex and require significant preparatory work followed by consultation and debate by members. So in order to have the budget ready to be approved next March, work on proposed cuts must be under way in every area.

But aren’t these cuts inevitable? Well, in short, no. There is no doubt that local authorities will be forced to cut services given the ongoing reductions in funding from central government. But the specific cuts they make must be made lawfully, taking into account all the relevant statutory duties. The recent West Berkshire short breaks judgment makes this clear.

There are still choices to be made by councils – not just between which services to cut but also (for example) what level of reserves to hold and where to fix the council tax. All these choices are hard but they are choices nonetheless.
So campaigners and local groups concerned about potential cuts to valued services need to start engaging with their council’s proposals now. I’d suggest:

• Keeping a close eye on local papers, TV and radio. Proposed cuts often generate local media interest.
• Check the council’s website. All formal consultations (including the overall budget consultation) should be easily available online. Check the agenda and minutes of Cabinet and Council meetings for early warning of proposed cuts.
• Make sure you work together, including if possible identifying people in the group with the skills and expertise to understand the financial proposals so you can ask the right questions.

I’ve set out some of the key legal questions campaigners and local groups may want to ask in an earlier post. I hope that post shows the wide range of legal duties with which local authorities must comply when making cuts.

Law Commission consults on review of children’s social care law – please respond

The Law Commission is consulting until 31 October 2016 on its next programme of law reform. One of the issues it is considering reviewing is children’s social care.

There will be competition for what goes into the Commission’s next programme. If, like me, you think children’s social care law is badly in need of an overhaul then please respond to the consultation before the end of next month – see the end of the final link above. One option would be to respond to say – ‘yes please, the current law is a mess’. However I’m sure the Commission would be assisted by slightly fuller responses. Here are some outline thoughts on the issues raised by the Commission in its consultation.

Firstly, the Commission must be right that many of the factors which required new legislation on care for adults in the Care Act 2014 also apply equally to children’s social care. As previously for adults, the law in relation to children’s social care is piecemeal and patchy. Although it centres around Part 3 of the Children Act 1989, the 1989 Act has been repeatedly and confusingly amended in the intervening years and there are other important statutes, not least the Chronically Sick and Disabled Persons Act (CSDPA) 1970 for disabled children. There must be a compelling case for a simpler, more streamlined scheme for children as for adults.

Secondly, it is noteworthy that the first two specific issues identified by the Commission concern disabled children. This reflects in my view the fact that the current statutory scheme works particularly badly for disabled children. It is very difficult if not impossible for families and professionals to understand the links between the CSDPA 1970, the Children Act 1989 and the Children and Families Act 2014. The way social care law operates (or fails to operate) for disabled children therefore seems to me to be particularly ripe for review.

I will post my full response to the Commission nearer the time, but I hope the above is helpful as a starter for 10. Please do respond to the consultation and spread the word to others who may be interested. The Commission has an excellent track record of getting its proposals into law and so this is likely to be a worthwhile investment of time.

 

A new right to short breaks – but only in Scotland

I’m heading back from the fantastic International Short Breaks Association conference in Edinburgh, where I spoke about Aiming High for Disabled Children and the short breaks duty in England. This gave me a chance to look at the (relatively) new Carers (Scotland) Act 2016, which will apply from 2017-18. Although some aspects of the Scottish legislation are familiar from the English scheme (for example the requirement to publish a short breaks services statement), there are of course important differences.

The most striking difference to my mind is that in Scotland there will shortly be an enforceable right to services (potentially including short breaks) for some unpaid carers of disabled children, not just disabled adults as under the Care Act 2014 in England. This is because the Scottish Act applies to ‘carers’, who are defined simply in section 1 as ‘an individual who provides or intends to provide care for another individual ‘. There are then two exceptions, the first being ‘professional’ carers. The second exception is that the definition does not apply ‘in the case of a cared-for person under 18 years old, to the extent that the care is or would be provided by virtue of the person’s age’. It seems to me that applying this exception is likely to create practical difficulties – is the parent or other relative support a disabled child by reason of her disability, her age or both? Regulations should shed light on how this test is expected to work in practice.

Although the test may be problematic, the principle of extending a meaningful right to support to unpaid carers of disabled children in Scotland must be welcome. The high point of the English legislation in this respect is the duty under section 17ZD-ZF of the Children Act 1989 to carry out a ‘parent carer’s needs assessment’ (‘PCNA’), but as blogged previously these sections do not create any right to support.  The English short breaks duty and accompanying regulations are focussed on the commissioning of short breaks by local authorities and do not confer any individual rights.

The right to support (including short breaks) in the Scottish Act stems from section 24, which states that subject to certain criteria local authorities ‘must provide support to the carer to meet the carer’s eligible needs’. Eligibility is to be determined by reference to local eligibility criteria, although the Act contains a power for Ministers to make national criteria through regulations which would override local criteria. I can imagine some interesting discussions about whether that power ought to be used.

Section 25(1) of the Scottish Act states ‘A local authority, in determining which support to provide to a carer under section 24(4), must consider in particular whether the support should take the form of or include a break from caring’. As such there must be specific consideration of whether short breaks need to be provided in every package of support for carers with eligible needs. It may well be in many cases that the carer’s eligible needs can only reasonably be met through the provision of some sort of short break.

Much of the detail of the scheme under the new Scottish Act has been left to regulations, which are still forthcoming. I very much hope colleagues in Scotland are able to push for the most rigorous scheme that will provide an example in England and elsewhere.

One final reflection – the Care Act 2014 in England applies to disabled adults and their carers. The Scottish Act applies to carers of both disabled children and adults – but not to disabled people themselves. Is it naïve to think that we might be able to have a single joined up scheme covering disabled people of all ages and those who provide them with care? This seems particularly important when a short break must be a positive and rights-respecting service for the disabled person, not just a chance for a break for their carer.

There is a lot more in the Scottish Act than I have covered in these initial reflections. I should also stress that I am an English lawyer and am not familiar with the wider scheme in Scotland in which this Act sits. Any comments by those with more expertise will be very welcome.

Using the law to recover the cost of care which the state fails to provide

A recent case has shed some light on one of the most difficult problems that some disabled people and families may face – how to recover the cost of care which should have been provided by the state.

A typical scenario might go like this. An assessment shows that a disabled child or adult has eligible needs. There may even be a care plan put in place or other agreement on the services or funding required to meet those needs. Then nothing happens – and so the disabled person or their family is left paying for care which the state has accepted it ought to provide.

There are a number of options in this situation. For example, a complaint can be made through the local authority complaints process and ultimately to the local government or health Ombudsman, which could recommend compensation for maladministration. These recommendations are almost always followed by public bodies. Alternatively, if the local authority is asked to refund the monies and refuses, that decision could be challenged by way of judicial review on the usual public law grounds, including rationality and reasonableness. This is particularly likely to be appropriate where there are other ‘live’ issues with the care package. The sums involved would need to be significant to justify a stand-alone judicial review to recover past care costs.*

A recent case however shines a spotlight on a third option – an ordinary civil claim for ‘restitution’. The case in question is Richards v Worcestershire CC and South Worcestershire CCG and the judgment at [2016] EWHC 1954 (Ch) concerned the defendants’ application to ‘strike out’ the claim.

The value of the claim was significant, amounting to over £644,000. This reflected the costs of care for Mr Richards after his discharge from hospital in 2004. Mr Richards had been detained under the Mental Health Act 1983 and so was entitled to ‘after care’ support under section 117 of the 1983 Act. Importantly, the judgment records (at [18]) that Mr Richards was ‘not challenging the defendants’ assessment of his needs and or their decisions as to what after-care services should be provided. His case…is rather that the defendants failed to provide the services that they considered should be supplied’.

The Judge did not have to concern himself with the factual issues in Mr Richard’s case, because the defendants’ application was to strike the claim out on the basis that it was ‘not properly the subject of private law proceedings’ (at [20]). The first issue the Judge had to resolve was whether it was possible in principle for Mr Richards to bring a restitutionary claim. He decided this in Mr Richards favour, firstly on the basis that the 1983 Act did not exclude any such claim at common law. It would seem that the same analysis would apply to any of the other statutes which give rise to an entitlement to community care services, for example Care Act 2014.

The Judge also considered that Mr Richards may be able to make out a claim for unjust enrichment. The Judge recorded that ‘failure to perform a public law duty has never of itself been held to be an unjust factor for the purposes of a claim in unjust enrichment or a sufficient basis for any other restitutionary claim’ (see [36]). However it was seriously arguable that the defendants had been enriched at Mr Richards’ expense and no argument was put forward that Mr Richard’s case that the monies had been paid by ‘mistake’ could not succeed.

The second issue was whether Mr Richards was entitled to pursue an ordinary civil claim (under Part 7 of the Civil Procedure Rules) or if he needed to bring his claim by judicial review. In short, the Judge held that Mr Richards was entitled to bring a civil claim for the reasons set out at [50] in the judgment. This is potentially helpful in future cases as there is a much less strict time limit for ordinary civil claims than for judicial review.

The defendants’ application was dismissed and Mr Richards’ claim will now proceed to trial unless it now settles, which my uninformed guess says is likely.

In terms of the factors which would seem to be needed to mount a successful claim of this type, the first requirement would be a clear breach of statutory duty to provide support by the public body. It would seem unlikely that another breach of statutory duty, for example a failure to complete an assessment, would be sufficient, even if this led indirectly to expenditure on care. The claimant would then need to show the presence of an ‘unjust factor’ such as a mistake – or convince the court that the common law should be extended so that failure to perform a public law duty alone would be sufficient.

None of this is likely to be straightforward and disabled people and families will of course need specialist advice on the facts of their individual case. It may however be helpful to consider a civil claim as part of the set of legal options where a local authority or NHS body is simply refusing to cover the costs occasioned by a breach of one of their duties.

Thoughts on the above and / or examples (anonymised as appropriate) of how costs of care have been recovered in other cases are most welcome via the comments below.

*Moreover it is not possible to bring a claim for restitution alone via judicial review (see Civil Procedure Rules r 54.3(2)).