I’m very pleased to host this guest post from Prof Katherine Runswick-Cole, describing her experience of using judicial review to challenge Derbyshire’s decision to operate under the Care Act ‘easements’. Katherine has also produced an easy read version of this post: Derbyshire easy read.
Have you learned a new skill during lockdown? Perhaps you’ve made your first banana bread, crocheted a lockdown blanket or planted runner beans?
I’ve learned a new skill too, I’ve learned about the power of pre-action letters and judicial review to protect human rights.
Supported by Alex Rook of RIS Law and Steve Broach of 39 Essex Chambers, my son, William and I have used a pre-action letter to challenge Derbyshire County Council’s decision to introduce ‘easements’ under the Coronavirus Act (March, 2020) that would allow them to downgrade their duties under the Care Act (2014). This decision had a potentially devastating impact on William. William relies on direct payments to deliver the care he needs to live an ordinary life as part of his community. Derbyshire’s ‘easing’ of Care Act duties put this support at risk, and it appeared to us that William was facing the prospect of potentially reduced, or even no, support.
We wanted the Local Authority to explain the justification for their decision to introduce the easements – what was happening in Derbyshire that meant this decision was necessary? After all, after a bit of brilliant investigative work by George Julian, we found out that the rate of deaths in Derbyshire from coronavirus during March and the first two weeks of April (30.8 per 100k people) was lower than the rate across England (36.6) and overall deaths from all causes in Derbyshire (153.2 per 100k people) was also lower than the rate across England (161).
Our family found out about the changes from Twitter, we had no communication, certainly no consultation, from the Local Authority. We challenged Derbyshire’s failure to consult with, let alone inform, people potentially affected by the decision to introduce easements and their failure to communicate this decision.
In their response to an exchange of legal letters, we discovered that Derbyshire triggered the easements on 30th March, 2020 but did not communicate this decision, even, as they are required to, to the Secretary of State, until 22nd April, and then only published the decision in a cabinet report on 23rd April, squirrelled away on their website.
Derbyshire have said that the council “has learned lessons from having to react swiftly to a situation never encountered before and will certainly respond differently in the future, should the need arise, in a number of respects, but certainly in relation to publicity and communication.”
In a public statement we stated that we remain concerned about the failure to communicate to anyone at all for three weeks about the decision, and even then only to do so by the publication of a Cabinet report on the website. We also continue to question whether the legal tests for enacting the care act easements were ever met, but we were glad to see that Derbyshire has learned lessons, that they assured us that William will not in fact be directly affected, and promised to do things differently, and so, for the moment, we’ve decided not to pursue the case further.
Layers and the law
By now you might be thinking, great, a good news story, a local authority is held to account, but hidden behind the narrative are layers of complexity that often make it difficult for families like mine to use the law.
The first barrier is, of course, money. Legal aid does still exist to fund cases like my own, but it is extremely difficult to find a legal aid lawyer with the necessary experience and capacity to take on new work. Lawyers (sorry Alex and Steve) are otherwise notoriously expensive. We could not have even begun on this path without them agreeing to speak to us about the issue on a pro bono basis. We were also extremely lucky that RIS Law have an Education, Health and Care Social Justice Fund. The fund exists to give legal advice for disabled people or families who need assistance to get the legal support that they require that they are otherwise unable to access. Our bursary covered the cost of sending the letters.
During the pandemic, there have been several examples of individual disabled people and their families using the law to protect their rights (Doug Paulley sought to challenge the failure of the Secretary of State to plan for the allocation of critical care resources; Rachael Adam Smith has been fighting for carers pay during lockdown). And yet the ‘big’ disability charities have been very quiet, noting, for example, that they are ‘troubled’ by the government’s delay in publishing information about the COVID-related deaths of people with learning disabilities, but not taking an active lead in any legal challenges. While big charities may reasonably fear having to pay prohibitive legal costs, families are struggling to find the money even to send a pre-action letter, and, all the while, charities sit on their funds. Our story shows the power of a small bursary fund, it would be good if more of these were made available, perhaps by big charities.
I really struggle with the language of the legal system. Now, as the saying goes, people in glasshouses shouldn’t throw stones, and as I work in a university I admit that I often use jargon myself, but it is very different jargon from the language of the law. Points of law are difficult to navigate. We needed Alex and Steve to translate it for us.
Access to ‘specialist’ knowledge has never been more important than it is now. And I am really grateful to all the people who work so hard to give information in accessible ways (check out Sunderland People First; SpeakUp Self-Advocacy, Barod and Disability Sheffield for good examples of accessible information).
And all this has made me think very much about interdependence. William and our family have been supported by our legal team, but also by our friends in the wider disability community. We needed their support to get this far.
We have put our heads above the parapet, but we could not have done it alone. When deciding whether or not to challenge Derbyshire’s decision, I asked Alex and Steve if there was any potential risk that William might be treated ‘less favourably’, by the local authority, in the future. To some this will sound like paranoia, and yet to others who have navigated systems of power, it is an obvious question. Support from the disability rights community gave us the help, support and confidence we needed to make this challenge, we all need support to speak up.
The inequalities that disabled people are facing during the pandemic are not new. Before COVID-19, people with learning disabilities and/or autism were already among the most disadvantaged members of society with a life expectancy 20-30 years less than their non-disabled peers. When the Care Quality Commission finally published information about COVID-related deaths of people with learning disabilities, they revealed that the number of deaths has more than doubled. And the crisis is by no means over yet.
Sadly, as lockdown eases, there will be more legal questions and potential challenges ahead. Disabled people, their families and allies will continue need access to the law to protect their rights. We will all need to play our part.