Guest blog – using the law to challenge cuts – Mathieu Culverhouse, Irwin Mitchell solicitors

I’m very pleased to have a guest post on rightsinreality from Mathieu Culverhouse at Irwin Mitchell solicitors, one of the leading public law solicitors involved in challenges against cuts. I’ve written a number of times on the blog about the law that can be used to challenge cuts. I asked Mathieu to focus on a related issue – the practicalities of how to bring such cases to court. The questions were sourced on social media, with thanks to all those who responded. Over to Mathieu…

1.Parents who know their children’s rights can contest individual decisions at Tribunal, but what collective options are available to contest cuts?

Challenges to cuts are generally brought as applications for judicial review. Whilst ‘group actions’ are common in the US, and increasingly in the UK in relation to consumer and personal injury claims, for practical reasons they have not to date been used to bring legal challenges to cuts.

The main practical reason for this is that, with the availability of legal aid for individuals, and the advent of crowd funding (see further below), it is far simpler and easier for an individual, or a small number of individuals, to bring a cuts challenge.

However, collective action still plays an important part in bringing cuts challenges to court.  Having an organised campaign group from an early stage can be extremely helpful in identifying a suitable individual or individuals to act as claimants in an application for judicial review.  The campaign group can also assist in gathering witness evidence from others, in addition to the claimants, who are affected by the decision.  And of course, where a claim is being paid for through crowd funding, an active campaign group is vital for raising awareness and funds.

2. When is the right time to try to bring legal challenges to cuts?

The sooner the better.  A claim for judicial review must be brought promptly and not later than three months after the grounds for the claim first arose. The need for a claim to be brought ‘promptly’ can mean that where a case involves a challenge to a particularly significant decision (for example a challenge to a council’s budget), a court might still say that a claim has been left too late even if it is issued within three months.

It is therefore vital to start the process of seeking expert legal advice as soon as possible.  A solicitor will be able to help you identify the decision which needs to be challenged, the date of that decision, and whether there are good legal grounds to challenge it.

It may be that your solicitor will advise that it is too soon to bring a judicial review challenge (for example if a final decision on the issue has yet to be made), and that you need to wait before bringing a formal challenge. But this is a complex and technical area of law, and it is therefore crucial to get specialist advice from the outset, rather than risk missing the opportunity to bring a challenge by leaving it too late

3. What does being a ‘claimant’ in a cuts challenge actually involve?

The ‘claimant’ in a cuts challenge is the person who is bringing the claim, and will usually be someone who uses the service which is being cut.

In order to bring a challenge the claimant will need to instruct lawyers (often funded by legal aid – see below), who will then prepare the necessary paperwork for the court.

Where the service user is a child or an adult who does not have the mental capacity to instruct lawyers, a ‘litigation friend’ can instruct the lawyers on their behalf.  This could be a family member, a carer, a friend or any other suitable person. Legal aid can still often be obtained for the child or adult who actually uses the service.

Once the claimant has instructed lawyers, the lawyers will do the vast majority of the work involved in bringing the case to court.  Depending on the type of case, the lawyers might need the claimant to provide documents (such as letters, emails or care assessments), and the lawyers are also likely to want to take a statement from the claimant or the litigation friend.  Again, the work of taking a statement will be carried out by the lawyer.

Although the claimant will usually provide a written statement to the court, it is extremely unlikely that the claimant will be required to speak in court.  These kinds of cases are usually very dry, technical affairs, and all the talking in court is done by lawyers rather than witnesses.

This kind of case is nearly always held in public, which means that supporters of your case are able to attend the hearing.  This can often be helpful, to show the judge the strength of public feeling about the issue. However, if a large number of people are expected to attend, it will usually be a good idea to let the court know in advance so that they can make any necessary arrangements (e.g. holding the hearing in a big enough court room).

Some claimants might find that the idea of attending court is too much for them, or they may simply be unable to because of the nature of their disability.  Whilst it is always good to have the claimant in court for the hearing, it is equally fine if they are unable to attend, and the court will be sympathetic and understanding about this.

If a claimant is particularly vulnerable, for example in the case of a child or an adult who lacks the mental capacity to instruct lawyers, the court can be asked to make an order for anonymity, meaning that the claimant’s name will not appear in the published court papers and cannot be reported in the media. This request will usually be accepted although it is not guaranteed – but the issue of anonymity can be resolved before any public hearing so the claimant does not have to proceed if anonymity is refused.

4. Can you still get legal aid to challenge cuts?

Shout it from the rooftops – legal aid is still available to challenge cuts.  Many people are under the mistaken impression that legal aid has been abolished altogether, but that is not the case.  Although legal aid has been restricted (or removed altogether) for a number of areas of law, it is still available for ‘community care’ and ‘public law’ challenges, which in practice means that it is available to challenge cuts to public services.

Legal aid for these cases is means tested, but it is important to understand that where there is a potential court challenge, the means test is based on the service user’s means (whether that is a child or an adult) and not their parents’ or carers’ means.  The means test for legal aid is complicated, but in general terms people whose only income is from state benefits, or who are otherwise on a low income, and who have limited capital, will usually qualify. Specialist solicitors will be able to advise on the detailed requirements of the legal aid system.

 And, whilst in recent years the number of lawyers working in legal aid has reduced significantly, there remains a small but dedicated community of solicitors and barristers working in this field.  See here for a non-exhaustive list of specialist solicitors. 

5. How can you fund a cuts challenge if you can’t get legal aid?

In recent years more and more people have turned to crowd funding in order to bring legal challenges.  A number of online platforms have been set up to assist with this, the most popular of which is currently CrowdJustice.

By launching a crowd funding campaign, donations can be sought from the community affected by the decision under challenge, as well as from members of the general public who wish to support the cause.

If you cannot get legal aid, and you do not wish to pursue crowd funding, the options for funding a challenge are unfortunately limited.  Because of the particular rules which apply to judicial review cases, it is very rare for these cases to be run on a ‘no win, no fee’ basis.

One option is of course funding the challenge privately from your own resources, but challenges of this kind are very expensive and so this is unlikely to be a realistic option for most people.  Another option is to find lawyers who will agree to act ‘pro bono’ (ie free of charge). However even then the problem is that the usual costs rules apply to judicial review, so it is likely that an unsuccessful claimant will have to pay the public body’s legal costs. One of the key benefits of legal aid is that it comes with pretty effective ‘costs protection’ from the other side’s costs, meaning that usually legally aided claimants have to pay nothing towards the costs of the claim. A ‘protective costs order’ can be sought for non-legally aided claimants, limiting their exposure to costs, but the rules around these orders are complex and specialist advice will be needed.

6. What actually happens if you win a cuts judicial review? Do they have to reinstate the funding?

It is important to understand that in a claim for judicial review, the court will generally look at whether the way in which the decision was made was lawful or not.  If it is found to be unlawful, the court is likely to make an order ‘quashing’ the decision in question.  This means that the decision is effectively cancelled and the situation restored to that before the decision was made.  If the decision being challenged was one to cut funding, this of course means that the cut will not be implemented, at least for the time being.

Whilst it is open to the public authority to go away and try to make the same decision again but in a way that is lawful, in many cases public authorities which have been on the losing end of judicial reviews have chosen not to attempt to re-make the decision under challenge.  This could be either because the court’s criticism of their decision has been so strong as to make it difficult for them to make the same decision lawfully, or because they have simply taken a strategic decision to drop the proposal under challenge and look at other options for saving money.

A good example of this is the 2011 challenge to Birmingham City Council’s decision to cut £51m from its budget for adult social care and to raise its threshold for eligibility for adult care.  After the judicial review succeeded and the decision was quashed by the High Court, the council decided not to pursue the budget cuts or the policy change any further.

7. How can parents use the law to challenge an LA’s decision only to provide services in accordance with their statutory duties?

With increased pressure on local authority budgets, many councils have indicated that they will soon only have enough money to meet their basic statutory duties (i.e. the services the law says they have to provide), and will therefore be unable to provide any “non-statutory” services.

However, even when a service is non-statutory, it may still be possible to challenge a decision to cut it if the public authority has not made its decision lawfully.

A challenge may be brought on the basis that no, or inadequate, consultation was carried out before the decision was made, or that the decision maker failed to take into account the impact of the decision on people with a ‘protected characteristic’, such as disability, in breach of the Equality Act 2010.

This means that, despite the pressure on local authority resources, they can still be held to account for decisions to cut non-statutory services. There is also often potential for argument as to whether services are really non-statutory. For example short breaks for disabled children are now a ‘statutory’ service under the Breaks for Carers of Disabled Children Regulations 2011.

See also some of the key legal questions identified in one of Steve’s earlier blog posts.

 8. Where there is a ‘sufficiency duty’ in a particular area, how can families best gather evidence that a service (such as short breaks) is not in fact ‘sufficient’?

Much of the evidence in this kind of challenge will centre around what steps the local authority has taken to establish what the local need for the service is and to balance this need against the other demands on its resources.

However, families involved in such challenges can assist by recording in writing their own experiences of asking for, and being denied, the service in question.

For example, a family could keep a diary over the course of several months recording all the occasions on which they have asked for a short break and have been told that no space is available.  One such diary on its own may be enough to demonstrate the lack of sufficient provision, but of course the more families that are able to provide this kind of evidence, the more powerful it will be.

9. Are there any other key points you want to make about the practicalities of using the law to challenge cuts?

We are lucky to live in a country where the law allows individuals to hold public bodies to account through the courts.  But the law is only any use if it is enforced, and all too often public authorities are able to get away with making unlawful decisions without being challenged.

This is why it is vital that bad decisions made by public authorities are challenged.  If bad decisions go unchallenged, this will only encourage bad practice and breed more bad decisions.  It is only by holding public authorities to account that we can make sure that the rule of law is upheld and our rights protected.

SEND Tribunal health and social care powers – still no parity with education

A parent of an autistic child once told me that the real ‘triad of impairments’ experienced by her family was education, health and social care. Disabled children’s needs don’t exist within neat service boxes, but there remain deep silos between these three different agencies.

The Children and Families Act 2014 went some limited way to addressing this problem, particularly through the creation of Education, Health and Care Plans (EHCPs). However even within the context of EHCPs real divisions between the three service areas remain. For example, the trigger for an EHC needs assessment is only (in short) significant levels of educational need. A child could have the most complex health or social care needs and still not qualify even for this form of assessment if their educational needs are modest.

Even for those children who do qualify for an EHCP, the duties to implement the provision in the plan are different across the different agencies. Section 42 of the 2014 Act imposes duties on local authorities to ‘secure the specified special educational provision for the child or young person’ and on CCGs to ‘arrange the specified health care provision for the child or young person’. Section 42 doesn’t say anything about social care provision, so this area of provision is underpinned only by the previously existing law, in particular section 2 of the Chronically Sick and Disabled Persons Act 1970 which is horribly out of date.

The fact that it continues to matter greatly whether needs or provision are educational, health or social care is demonstrated by section 20(5) of the 2014 Act. This put into statute a rule that ‘Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision)’. This ‘deeming provision’ turns (for example) a host of therapy services which might generally be the responsibility of the NHS into ‘educational provision’ for children with EHCPs, meaning that such provision becomes the responsibility of the local authority for those children.

All this brings us on to the latest innovation in the SEN system – the nationwide extension of the pilot allowing the Tribunal to make recommendations in relation to health and social care provision (i.e. all health and social care provision that isn’t ‘deemed’ to be educational provision). This is brought about by the SEND (First-tier Tribunal Recommendations Power) Regulations 2017. There is an excellent background article on the Tribunal’s new powers on the Special Needs Jungle website, including a link to the analysis by CEDAR of the very limited earlier trial.

A few things to note:

1. These regulations come into force on 3 April 2018 and only apply to appeals (a) against decisions of local authorities made on or after that date or (b) relating to an EHCP made or amended on or after that date. It is expected that this nationwide trial will last two years.
2. Unlike in relation to the SEN sections of an EHCP which the Tribunal can require to be rewritten, the Tribunal’s powers in relation to health and social care needs and provision are limited to making ‘recommendations’ .
3. By their nature recommendations are non-binding. There may well therefore be cases where the local authority or CCG consider and reject the Tribunal’s recommendations. The remedy in such cases would be a complaint to the Ombudsman or (in serious and urgent cases) an application for judicial review (JR). However a successful JR would need to show an error of law in the approach of the local authority and / or CCG, for example irrationality or a failure to take all material considerations into account.
4. The duty on the CCG or local authority is to respond to any relevant recommendations, including giving written reasons for any decision not to follow all or part of the recommendation.

It is therefore crystal clear that even when this new power comes into force the appeal rights available to parents and young people will be weaker in relation to health and social care than presently exist in relation to SEN. The Department for Education has stated that ‘we would generally expect that recommendations are followed’, however such an expectation has no legal force. It is though likely that many Tribunal recommendations on health and / or social care provision will be followed by local authorities and CCGs, at least in part. If they are not, then the requirement to provide written reasons will give young people and parents a sound foundation for further challenge in appropriate cases. This represents progress, even if we remain a long way from a properly joined up system for disabled children, young people and families.

Time to fight the removal of children’s rights through the Children and Social Work Bill

There are bad ideas. There are really bad ideas. And then there’s clauses 29-33 of the Children and Social Work Bill 2016.

This handful of clauses, if approved by Parliament, will allow the Secretary of State to exempt local authorities in England from the requirements of children’s social care legislation in the guise of ‘test[ing] different ways of working’. At a stroke the Secretary of State could say that Durham doesn’t have to meet disabled children’s needs under section 2 of the Chronically Sick and Disabled Persons Act 1970, Doncaster can forget about parent carers’ needs assessments or Dudley can ignore the duties owed to young carers. In the alternative, the Secretary of State could modify the way in which these requirements apply rather than exempt them entirely, just to increase the overall level of confusion.

I’m struggling to know where to start in explaining why this would be a bad idea. But here goes…This post is written from the perspective of the impact on disabled children, but similar concerns will apply across all children ‘in need’. For example, the clauses would seem to allow the Secretary of State to disapply every single requirement of the care planning regulations for looked-after children.

The law on support for disabled children, young people and families is already a mess. It derives from a patchwork of legislation enacted over the past decades, with duties and powers piled one on top of the other. The only saving grace is that it is the same mess everywhere – wherever a disabled child lives in England, their legal entitlements are the same.

If these clauses go through, even that saving grace will be lost. Rights and entitlements will vary across the country, depending on which exemptions or modifications the Secretary of State has granted to a particular local authority. This reduces rather than increases the transparency that is so badly needed if families are to enforce their rights.

What’s more, I simply do not understand why a local authority would need to be exempt from any of the baseline statutory duties governing support for disabled children in order to innovate or test different ways of working. The legislation governing children’s welfare creates a safety net which should never be removed or undermined in this way. Any specific amendments to the statutory scheme should require express and explicit Parliamentary approval, not the Secretary of State’s say-so.

All of the above is true at any time. However the statutory safety net is even more important at a time like this, when many local authorities feel constrained to cut services to the bone to balance their budgets.

The Bill comes back to the House of Lords for Report stage on 18 October – details of the Bill’s progress are on the excellent Parliament website. A coalition of individuals and organisations has come together to oppose these clauses under the banner of Together for Children. Please sign up to show your support – and please see this excellent article from Sara Ogilvie from Liberty for some of the wider concerns.

Hopefully the Lords will ensure that clauses 29-33 are removed from the Bill. However if they do not and they reach the statute book, it seems to me that there is a real issue here under Article 14 of the European Convention on Human Rights, given that disabled adults will continue to have the benefit of coherent legislation in the form of the Care Act 2014 whereas the patchwork of disabled children’s law will simply acquire more holes. It is very hard to see how this differential treatment can be justified, given that the needs of a 17 year old disabled child will be very similar to those of that young adult at 19.

Final point – all this shows how urgently we need the Law Commission to review children’s social care law…

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.

New case law updates on disabled children’s rights

Quick post (first for some time) to flag the new case law updates published by the Council for Disabled Children with its Summer Digest. These will hopefully be of interest to disabled young people, families and professionals.

The first covers two Upper Tribunal appeals brought by Hillingdon and Buckinghamshire. Both appeals considered the appeal rights for young people (aged 16-25) and the approach to be taken where a young person lacks capacity to bring their own appeal. The Buckinghamshire decision gives important guidance on the meaning of ‘education’ for young people.

The second is about another important Upper Tribunal decision (this time in an appeal by Staffordshire) which gives clarity about school transport entitlements for young people. It is important for young people and families to note the conclusion that the Tribunal cannot resolve disputes in relation to school transport and that the correct remedy is judicial review.

The third concerns a successful human rights claim against Kent in the context of care proceedings. The judgment suggests that serious failures to comply with the duties owed to disabled children under the Children Act 1989 may result in breaches of the Human Rights Act 1998, which may in turn lead to damages being awarded.

All three updates are themselves summarised in the main CDC Digest (see p14 onwards).

Talk to Housing and Support Alliance Independent Living conference

Absolutely cracking conference put on by the Housing and Support Alliance today. Real unity in the room that we need to fight for the right to independent living in these challenging times.

My slot was given the title ‘Rights are more important now than ever’. This is roughly what I said:

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What’s the point of people with learning disabilities having legal rights? Some people (including I suspect some lawyers) don’t think that this area of law is ‘real law’. On this view, local authorities and NHS bodies should just be left to get on with providing whatever support they think they can afford, perhaps subject to inspections from official bodies to make sure things don’t get too bad.

But in the 21^st century as a society we don’t think that’s good enough. Instead most of us sign up to a view that everyone, including disabled people, has fundamental rights that have to be respected.

We have these rights because we are human – that’s why they are called human rights. So when councils put disabled people in places where they are not free to leave and they are subject to continuous supervision and control (watched all the time), this is a deprivation of their liberty, the same as it would be for everyone else. It needs to be properly justified and approved by law to stop there being a breach of Article 5 of the ECHR, the right to liberty.

But we also recognise in the 21^st century that if we just have one set of rights for everyone we won’t ensure that everyone’s rights are properly respected. So we reflect the fact that different groups have different needs and set out their rights – women, children and finally and most recently disabled people.

So Ian’s right* – we are part of the civil rights movement. And Gary’s right* – we need to save the Human Rights Act. I think it’s striking that two of the people fronting the Act for the Act campaign are Jan Sutton and Mark Neary. Jan is a disabled women who used the Human Rights Act to get a package of care which meant she could live with dignity. Mark, as I imagine everyone here knows, can speak to the power of the Human Rights Act in helping get his son Steven home. So the Human Rights Act is fundamental to realising disabled people’s human rights.

We now have the UN Convention on the Rights of Persons with Disabilities (the CRPD). This is our Bill of Rights. It is a full package of rights, which if respected in every case would mean true independent living and community inclusion for every disabled person. Although it is still not part of our law, in the same way that the European Convention on Human Rights is through the Human Rights Act, the courts are giving the CRPD ever greater weight – for example, in helping find unlawful discrimination against disabled children in hospital who lose their disability benefits after 84 days.

If people think about the CRPD, they generally think about Article 19 – described as the right to independent living. But Article 19 is actually headed ‘living independently and being included in the community’. And that’s what it’s about – real inclusion, meaning ordinary lives, and the kind of love and relationships Sara** was talking about.

And then we have the next set of rights, those given by Parliament in specific acts like the Care Act 2014. These rights can move around and change in the details, but the basics endure.

For example the right for disabled people to have their eligible social care needs met in full regardless of the cost carries on from the old scheme to the Care Act 2014. However – if there are two ways of genuinely meeting the person’s needs the state can meet needs in the most cost-effective way; we see straight away how disputes arise.

But the basics aren’t enough. So there’s a right to personal care – but what about as Sally and Laura*** say, when your personal care gets ‘done’ by someone you don’t know, who only has 15 minutes with you and doesn’t have the time to get to know you or show you respect. Is that rights-respecting care? Of course not – either under the Care Act or the Human Rights Act.

So rights are always ‘important’, in the sense that if the law requires something to be done it must be done. Law trumps everything – even (surprise surprise) local authority policies.

But why might it be thought that rights are more important now than ever? The answer is obvious; because disabled people are under sustained attack from government policies that cut the specific fund to support independent living, undermine entitlements to social security, reduce access to legal aid and make it virtually impossible for councils to comply with their statutory duties through reducing their budgets.

And if it’s hard for councils now, we know that after the next spending review later this month it will almost certainly get worse. The Local Government Association say that with the expected cuts there will be:

• Legal challenges because councils aren’t meeting their Care Act duties
• Less dignified care
• More unmet need

So rights matter because they are a way of fighting back. They give content to our shouts where people are living impoverished non-lives, as Sara said. If there is a legal duty to provide – for example – the personal care a disabled person needs to lead a dignified life, then the state can be made to provide it.

Tom**** seems to be saying we have to accept the cuts. I say no – we have to enforce the law. Isn’t it interesting that Tom says – rightly – that where you live is going to make a massive difference to the support you get. But yet the law of England is the law of England…

Should people keep paying for their support with their freedom – definitely not? Should the number of people getting state support be reducing, as Tom showed? Definitely not – there has been no legal change that would allow this. Indeed councils aren’t allowed any more to have only care for ‘critical’ needs. If anything eligibility criteria should be getting more generous rather than reducing.

We can’t fund fewer people or give them less support because the law doesn’t allow it. Indeed there is an open question as to whether Elaine McDonald’s case would be decided differently now the Care Act is in force. Would the Care Act well-being duty allow for the provision of incontinence pads in cases such as this.

With respect to Tom, it shouldn’t be a choice between libraries and social care. There are duties to have both. If the government wants to change that, they need to ask Parliament to change the law.

Until they do, surely soon we will see legal challenges by local authorities on the basis they haven’t been given enough money to comply with their legal duties? Indeed we already have – two councils took the government to court to get more funding to implement the Care Act, and it seemed the government backed down and provided the funding once the court granted permission for the claim to proceed.

The legal route to achieve this is judicial review – and the essential point I want to make in this short talk is that legal aid is still available to bring judicial review challenges. If commissioners are becoming a ‘hard to reach group’, sending them a pre-action letter before a judicial review often gets their attention.

So what should disabled people, families and allies do if their rights aren’t being respected? There are lots of options – contact their MP, start a petition, chain themselves to the council railings. I’m not discounting any of these – but I would say that one of the first things to do is get specialist legal advice. If you search ‘rightsinreality solicitors’ you will get a list of some of the solicitors with disability expertise who have legal aid contracts and can advise disabled people and family members. There are issues about financial eligibility – having too much money to get legal aid – but it is always worth checking this out with a specialist solicitor, don’t just use the online calculator.

I’ve never known someone with a legal problem take advice too early, because a good solicitor will always say if there are other things to do than go to court. But I’ve known plenty of people take advice too late, when much of the damage caused when rights aren’t respected has already been done.

It’s also vital to remember that for every case that goes to court there will be a hundred if not hundreds that get set sorted out well before, with a better package of support.

At the same time we need to improve and strengthen the legal framework. That is the point of the #LBBill which has been crowdsourced by the incredible Justice for LB campaign, with disabled people, family members and allies across the country. It would:

• make the right to independent living in Article 19 of the CRPD part of English law;
• stop there being caps on the cost of care;
• require the state to respect people’s wishes as to where they live;
• ensure that there is enough community support available; and
• sort out problems with the Mental Health Act and Mental Capacity Act.

Many of these ideas can be read in to the existing law – and we need to push back when people deny that these rights exist. It is vital, as Sally says, that we don’t pretend everything is ok.

But #LBBill would make everything clear and put the rights in one place. We will have another go at getting the Bill into Parliament when the ballot for private members’ bills happens next summer. We are also very encouraged that the Law Commission is considering some of our ideas in its new scheme for managing deprivations of liberty.

We are less encouraged by the Department’s recent response to the No right ignored consultation. Issuing guidance isn’t going to do the job.

I want to end on some striking research which was covered yesterday by the brilliant team at Community Care. It concerns the new right to advocacy under the Care Act 2014, which is absolutely essential if that Act is going to make any real difference to people’s lives. Yet we learn that advocacy referrals are ‘way below’ expected levels; Reading council expected to provide 4,000 hours of Care Act advocacy this year, yet six months in they’ve only provided 170 hours. And this is a council that says it is actively promoting the new right. So we have to keep pushing to make these rights real.

My final conclusion is this. It is unacceptable for Parliament to pass laws and the government to sign treaties creating new rights, and then for funding to be cut to make it impossible for local bodies to realise them. This is the challenge for the next few years – and I believe rising to that challenge means using the law to enforce the extensive rights disabled people now have. If we bring the cases to show the law isn’t being respected then the funding we need must follow – that’s what the rule of law requires.

If government wants to reduce support for disabled people they need to get Parliament to change the law and face the consequences at the next election. We can’t let them get away with doing it by stealth through ever increasing cuts to budgets.

*Ian Birrell and Gary Bourlet co-chaired the conference (brilliantly). Ian is a journalist and Gary is from People First England (and judging by the mood of the conference a future Labour leader)

** Dr Sara Ryan gave an earlier keynote talk challenging the term ‘independent living’ being applied to ‘state supported non-lives’

***Laura Broughton and Sally Warren from Paradigm gave an earlier talk challenging people not to pretend things are as good as they can be

**** Tom Noon, Chairman of Cordis Bright, spoke powerfully about the present realities in relation to both housing and support

Response to the Law Commission consultation – Mental Capacity and Deprivation of Liberty

The deadline for responses to the Law Commission’s epic consultation on Mental Capacity and Deprivation of Liberty is this Monday, 2 November. The consultation document puts forward a well-considered new scheme which in my view would be a massive improvement on the mess the current law is in in this area. There are inevitably significant areas where the proposals need further thought, most notably in my view the reliance on the bizarre definition of ‘supported living’ in the Care Act scheme. However there is much more to welcome here than to criticise, in particular the emphasis on disabled people’s wider rights such as the rights protected under Article 8 ECHR which is integral to the proposed new scheme.

Responses to the consultation can be emailed to tim.spencer-lane@lawcommission.gsi.gov.uk. In case it helps anyone who is responding similarly close to the deadline, extracts from my draft response are pasted below – being the questions and proposals which I think are the most important and / or on which I’ve got a clear view.

If you’re a supporter of the Justice for LB campaign and the proposed #LBBill, please put in a response which shows your support for the Bill proposals which have made it into the consultation – guidance from Justice for LB here. This is a fantastic chance to see some of the #LBBill ideas get into law.

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Where I have not responded to a proposal this is because I agree with it. In particular I would emphasise my support for the proposals in chapter 12 on ‘Supported Decision-Making and Best Interests’ which in the absence of a wholesale review would go a significant way to remedying the deficiencies in the MCA scheme. The emphasis on disabled people’s rights beyond the right to liberty under Article 5 ECHR, in particular the rights protected by Article 8 ECHR, throughout the consultation is also very welcome.

Provisional proposal 2-1: The Deprivation of Liberty Safeguards should be replaced by a new system called “protective care”.

I fully agree that the Deprivation of Liberty Safeguards should be replaced, as they are not fit for purpose. I do not anticipate that the Commission will receive many, if any, responses suggesting that they should be retained. Amongst their many flaws, for me the fatal flaw is that they are restricted in their application to hospitals and care homes, setting up a two-tier system which treats disabled people differently depending on the setting in which they are deprived of their liberty, without any objective justification.

I also agree with the essential elements of the Law Commission’s proposed replacement system, subject to the caveats expressed below. However I do not agree with the proposed title of the new system, “protective care”, which is excessively paternalistic. I would prefer to see the new system given a positive title, such as “rights respecting care”.

Question 3-1: have we identified the correct principles to underpin protective care?

Yes in general, including in particular the principle that the scheme should be based in the Mental Capacity Act. However given the approach of the Supreme Court in cases such as R (SG) v Secretary of State for Work and Pensions and Mathieson v Secretary of State for Work and Pensions, it is not sufficient for the new scheme to merely be ‘supportive’ of the UN Disability Convention. The scheme has to ensure that the ECHR rights of all those affected by it are fully respected, and those rights are in turn informed by the rights in the Disability Convention and the other unincorporated Conventions. By way of example, the Optional Protocol to the Convention Against Torture (OPCAT) which has been signed and ratified by the UK is also directly relevant here to the interpretation of what is required under Article 5 ECHR, as it requires monitoring and inspection of all places of detention. The statement of intent in my view should therefore be that the new scheme will be ‘compliant with the rights protected by the European Convention on Human Rights, as informed by the UN Disability Convention and other relevant international instruments’.

Provisional proposal 4-1: the scope of protective care should include hospital, care home, supported living, shared lives and domestic accommodation?

Disagree on the detail, although not the intention to create a broad scheme. My concern is that the scheme should have the broadest possible application to avoid certain disabled people falling outside its safeguards. As set out below, the technical definition of ‘supported living’ under the Care Act 2014 scheme would exclude many disabled people living in ‘ordinary’ accommodation from the protections of the new scheme. This might be solved by the catch-all category of ‘domestic accommodation’ at least in relation to restrictive care and treatment – but in that case what benefit is served by distinguishing certain types of ‘supported living’? The scope of protective care should simply be ‘all settings where disabled people might be deprived of their liberty’, i.e. everywhere.

Further in relation to day centres, I am not convinced by the reasoning in the consultation paper at para 4.24 which suggests that any authorisation of a deprivation of liberty at a day centre would be covered by the authorisation of a deprivation at a person’s place of residence. Firstly, a day centre is likely to be run and administered completely separately from a person’s place of residence. Secondly, it is quite possible in my view that a person might be deprived of their liberty in a day centre but merely subject to restrictions on their liberty in their home – for example, the supervision and control the person experiences may be much more intense at a day centre.

Question 4-2: is the definition of supported living provided under the Care Act 2014 [sic – not 2015 as per the question] appropriate for our scheme?

The definition of ‘supported living’ under the Care Act scheme (see the consultation at para 4.19) is technical and not related to the reality of what many disabled people experience as ‘supported living’. As the consultation paper correctly notes at para 4.20, it excludes all accommodation not either adapted or intended for occupation by disabled people, however this is measured. I share all the concerns expressed by Lucy Series about this definition as reflected in the consultation paper at para 4.20. There is no benefit I can see from adopting this definition for the new scheme.

Provisional proposal 6-1: supportive care should apply where a person is living in care home, supported living or shared lives accommodation, or if a move into such accommodation is being considered.

Supportive care should apply where the state has played any role in arranging a disabled person’s accommodation, or is playing any role in a proposed move to alternative accommodation. As noted above, restricting the application of the scheme to the technical categories of accommodation created by the Care Act scheme is unhelpful and will result in disabled people who are subject to significant levels of state intervention in ‘ordinary’ housing falling outside the scope of the scheme.

I note the Law Commission’s provisional view (para 6.4) is that ‘it would be over-intrusive and an inappropriate use of public resources to require additional assessments or the formal use of an advocate or appropriate person’ where people are living in family settings or other domestic settings. However ‘supported living’ as defined in the Care Act is a ‘domestic setting’. I do not see any principled basis for adopting additional safeguards because someone happens to be living in the type of accommodation which meets the technical definition of ‘supported living’.

The only class of cases where it seems to me the imposition of ‘supportive care’ safeguards would be disproportionate in relation to disabled people who lack capacity to decide where to live would be cases where the state has played no role in the disabled person’s actual or anticipated living arrangements. In those cases, absent any safeguarding concerns or arguable breaches of the positive obligations under Article 5 and/or 8 ECHR, there will generally be no proper role for public authority involvement. That would seem to me to be a principled basis for the drawing the line in relation to ‘supportive care’, not whether the person’s actual or anticipated accommodation meets the somewhat arbitrary definition of ‘supported living’ under the Care Act scheme.

Provisional proposal 6-2: supportive care should cover people who may lack capacity as a result of an impairment of, or a disturbance in the functioning of, the mind or brain, in relation to the question whether or not they should be accommodated in particular care home, supported living or shared lives accommodation for the purpose of being given particular care or treatment.

Disagree in part. Supportive care should apply in the above way to any type of accommodation, not just those specified above. For example, it should apply if a local authority is proposing that a young disabled person should leave the family home and live in ‘ordinary’ housing which would not meet the technical Care Act definition of ‘supported living’.

Provisional proposal 6-3: a local authority should be required to undertake or arrange an assessment, or ensure that an appropriate assessment has taken place, where it appears that a person may be eligible for supportive care in care home, supported living or shared lives accommodation.

Disagree in part. The requirement to assess should not be limited to specified types of accommodation for the reasons given above. Further the requirement to undertake or arrange an assessment should also apply where one is requested by the person, an advocate, family member or friend.

Question 6-10: should local authorities and the NHS in England ever set personal budgets for disabled people living at home by reference to the cost of meeting the person’s needs in residential care?

Such a practice will almost always result in a disproportionate interference with the person’s right to respect for private life and the home under Article 8 ECHR, read with the right to independent living and community support in Article 19 of the Disability Convention.

The Care Act statutory guidance goes a significant way towards prohibiting this practice by local authorities, but there is no guidance of similar force to CCGs, so far as I am aware. As such at least two CCGs have adopted ‘maximum expenditure policies’ of this type. This should be expressly prohibited under the new scheme under the key principle of respecting rights. As the Commission is aware this proposal is central to the ‘LB Bill’ promoted by the Justice for LB campaign.

Question 6-11: should there be a duty on local authorities and the NHS, when arranging care home, supported living or shared lives accommodation for a person who lacks capacity to decide where to live:

1. to secure the most appropriate living arrangement for that person, which as far as possible reflects the person’s wishes and feelings; and
2. to seek the agreement of any donee of a Lasting Power of Attorney or deputy, or a declaration from the Court of Protection.

Yes, with the important caveat that these duties should not be restricted to those who lack capacity to decide where they live but should apply in all cases where the state is involved in determining a person’s living arrangements. A mechanism where this duty could apply to persons both with and without capacity to make the relevant decisions is set out in the draft ‘LB Bill’.

The ‘most appropriate living arrangements’ duty echoes the duty in relation to placements of looked-after children in section 22C(5) of the Children Act 1989, which was inserted by Parliament in recognition of the unacceptably poor outcomes for care leavers. Given the position of many disabled people who would benefit from this duty is equally poor when measured against all the relevant indicators there is just as much need for this kind of duty here. Consistent with my submissions above this duty should not be restricted to arrangements for care home, supported living or shared lives accommodation but should apply whenever the state is involved in making living arrangements for a disabled person.

The ‘agreement’ duty is equally important to provide a degree of independent checking of proposals put forward by the state. Although there would be obvious resource implications if the Court of Protection (or other independent body) was obliged to approve living arrangements where a person lacks capacity and has no representative, this is necessary to avoid the public authorities being able to simply railroad through the proposals it has decided upon, as appears to happen far too frequently at present. Again, this should apply whenever the state is involved in making living arrangements for a disabled person, not just in relation to proposed moves to care home, supported living or shared lives accommodation.

Question 6-12: should local authorities and the NHS be required to report annually on issues relating to living arrangements and community support, such as the number of living arrangements made and how often these arrangements were inconsistent with the person’s wishes and feelings?

The details as to how the reporting requirements would work are set out in the second draft of ‘LB Bill’. It would be important that the Secretary of State should publish reports at a national level based on this data, to allow for comparisons to be made between local areas.

Question 6-14: should the duty to make referrals for protective care be a regulatory requirement which is enforced by the Care Quality Commission, Care and Social Services Inspectorate Wales, or Healthcare Inspectorate Wales?

I can see no reason why this important duty would not form part of the regulatory and inspection regime for registered care providers.

Provisional proposal 7-1: the restrictive care and treatment scheme should apply to people who lack decision-making capacity as a result of an impairment of, or a disturbance in the functioning of, the mind or brain.

On balance, yes. Although I share the concerns of the Essex Autonomy Protect as to the compatibility of this approach with the Disability Convention, until the MCA 2005 is amended it will be necessary for the restrictive care scheme to dovetail with the approach of the MCA in this way.

Provisional proposal 7-2: a person would be eligible for safeguards if: they are moving into, or living in, a care home, or supported living arrangements or shared lives accommodation; some form of “restrictive care and treatment” is being proposed; and the person lacks capacity to consent to the care and treatment.

The trigger for the enhanced safeguards should simply be actual or anticipated restrictive care or treatment. The setting in which this care or treatment is irrelevant (with the potential exception of different treatment for hospital settings). In particular there is no principled basis for distinguishing between disabled people in ‘supported living’ as per the technical Care Act definition and other types of ‘ordinary’ housing. This is a wholly arbitrary distinction from the perspective of the disabled person, and one likely to lead to very large numbers of disputes as to whether the Care Act ‘supported living’ definition is met.

I recognise that the imposition of safeguards in cases where a disabled person is being cared for in a family home or their own home will be controversial. However in my view the interference with disabled people’s Article 8 ECHR rights is likely to be proportionate given the enhanced scheme will only apply to (1) those who lack capacity to consent to their care or treatment and (2) situations where invasive care or treatment is proposed.

Question 7-4: should the restrictive care and treatment safeguards be available to people who lack capacity to consent to their care plan, in any of the following cases:

1. the person is unable, by reason of physical or mental disability, to leave the premises, including:
   1. unable to leave without assistance
   2. able to leave without assistance but doing so causes the adult significant pain, distress or anxiety
   3. able to leave without assistance but doing so endangers or is likely to endanger the health or safety of the adult, or of others
   4. able to leave without assistance but takes significantly longer than would normally be expected
2. The person has high care needs and consequently is dependent on paid carers
3. The person has limited ability to direct their own care or to access existing safeguards?

Yes, with the following caveats in relation to each of the categories

1. Category 1 – it would seem helpful here to mirror the Care Act eligibility regulations, however care will need to be taken that local authorities do not interpret these sub-categories too restrictively.
2. ‘High’ care needs and ‘dependent’ on paid carers will need to be defined
3. Similarly, ‘limited’ ability to direct care or access safeguards will need to be defined.

Question 7-5: are there any specific forms of care and treatment that should automatically mean that the person is eligible for the restrictive care and treatment safeguards?

No. The question is not the type of care or treatment but its impact on the person, which needs to be assessed on a case by case basis.

Question 7-9: should the restrictive care and treatment assessment require a best interests assessment to determine whether receiving the proposed care or treatment is in a person’s best interests, before deciding whether it is necessary to authorise restrictive care and treatment?

Yes. It would be consistent with basing this scheme in the MCA 2005 for the primary question to be whether the proposed care or treatment is in the person’s best interests.

Question 7-10: should a person be eligible for the restrictive care and treatment scheme if restrictive care and treatment is necessary in their best interests – taking into account not just the prevention of harm to the person but also the risks to others?

Yes, so long as there is proper assessment that avoiding the risk of harm to others is in the person’s best interests – as will usually, but not always, be the case.

Question 7-12: should all significant welfare issues where there is a major disagreement be required to be decided by the Court of Protection?

All significant welfare issues should be decided by the Court of Protection, with ‘significant’ defined in the new scheme. A requirement for there to be a ‘major disagreement’ discriminates against disabled people who are (1) unable to demonstrate any disagreement with their care arrangements, (2) have no family or friends to disagree on their behalf and / or (3) have family or friends who simply acquiesce with the public authority’s proposals because they agree with them or because they are not aware of any alternatives.

I accept what is said at para 7.49 of the consultation, being that one of the benefits of the new scheme will be ‘a more proportionate approach to decision-making that does not require a court decision in every case’. As such ‘significant’ welfare issues could be defined relatively narrowly in accordance with the guidance in the case law. However depending on the presence of a ‘major disagreement’ to trigger the requirement for court involvement is unfair and discriminatory as outlined above. Indeed it may be that it is cases where everyone agrees on what is best for the disabled person that an independent check by the court is most important.

Question 7-21: should there be additional oversight of the role of the “Approved Mental Capacity Professional” and a right to request an alternative assessment?

Yes on both counts:

1. Appropriate oversight independent of the local authority will be required given the enhanced status of the AMCP role.
2. The right to request an alternative assessment should vest in the disabled person, and MCA representative or an IMCA or Care Act advocate. The alternative assessment should be carried out by an AMCP not employed by the same local authority as the first assessment.

Question 7-24: should the new scheme allow for conditions or recommendations to be made that are more restrictive of liberty than the application is asking for?

All restrictive conditions sought should be clearly set out in the application. This avoids the disabled person or those representing them being taken by surprise by further more onerous conditions imposed of their own volition by the AMCP.

Question 7-25: should there be specific sanctions for a failure to comply with a condition, and if so, what should they be?

The issue of sanctions for non-compliance with the law has been raised repeatedly in the groups working on the drafting of the ‘LB Bill’. While there has been no firm conclusion from these discussions the ideas raised include the following:

1. Referral of individual professionals to the relevant professional regulator
2. Fines for the public authority
3. Publicity – on the basis that sunlight is the best disinfectant
4. Criminal sanctions in the most serious cases.

Given the Commission’s stated desire for the new scheme to ‘secure the support of disabled people’ (consultation at para 3.2), I would suggest that specific work needs to be undertaken with disabled people and disabled people’s user-led organisations on the question of potential sanctions for non-compliance with the new scheme.

Provisional proposal 7-28: the AMCP should be able to review and vary conditions without necessarily holding a full reassessment of best interests.

In general the monitoring and reviewing role for the AMCP would seem to address some of the practical problems considered by the Court of Protection in Re NRA. However it is essential to set proper boundaries to this role. As such any variation of conditions without a full reassessment of best interests would have to be narrowly confined, if permitted at all.

Provisional proposal 7-30: the AMCP and local authority must review the care and treatment following a reasonable request by the person, a family member or carer, or an advocate or appropriate person.

A review should be triggered on any request by any of the above persons, unless perhaps a review has been undertaken recently (say within 3 months), in which case the AMCP and local authority could refuse on the basis of unreasonableness (e.g. if nothing had changed in that time). If the basis right to request a review is subject to a reasonableness qualification this will simply lead to disputes as to whether a particular request is reasonable.

Provisional proposal 7-32: cases of deprivation of liberty concerning those living in a family or domestic setting must be authorised by the AMCP and subject to the same safeguards as those provided under the restrictive care and treatment scheme.

Agree – although as per proposal 7-2 above my view is that the restrictive care and treatment scheme should apply in its entirety to all settings, including domestic settings. If it does not then at the very least there needs to be equivalent safeguards in cases where disabled people are deprived of their liberty, regardless of setting.

Question 7-36: should doctors be eligible to act as AMCAs?

It is difficult to see any principled objection to this, so long as doctors receive proper training and only carry out the best interests assessment in appropriate cases, for example when the relevant decision relates solely to proposed medical treatment. The practical concern would be whether doctors are sufficiently informed as to the social model of disability to conduct a holistic best interests assessment. It may be that it is valuable for a non-medical professional to carry out the best interests assessment in cases relating to medical treatment precisely to ensure that a wider perspective is taken. However it does not seem to me necessary or appropriate to prevent doctors from being eligible to act as AMCAs in any case.

Provisional proposal 7-37: an AMCP should be able to authorise restrictive care and treatment in urgent cases for up to 7 days, and to extend this period once for a further 7 days, pending a full assessment.

Although I recognise the need to have a process to manage truly urgent cases, I have two concerns about this proposal:

1. Is it suggested that the urgent authorisation would permit a change in living arrangements for the disabled person? If so I would question whether this would afford an appropriate level of safeguard for such a serious and potentially irreversible decision.
2. I am not clear why there should be a need for the urgent authorisation to be able to renewed after 7 days, whether for a further 7 days or at all. This would seem to go against the principle that urgent authorisation should be restricted to cases of genuine emergencies.

Provisional proposal 8-2: a person may be deprived of their liberty for up to 28 days in a hospital setting based on the report of a registered medical practitioner. A responsible clinician must be appointed and a care plan produced. Further authorisations for a deprivation of liberty would require the agreement of an AMCP?

I share the widespread concern as to this proposal. While I agree that a different scheme is required for hospital and palliative care settings this proposal places the bar far too low. As a minimum in my view:

1. The duration of an authorisation under this proposal needs to be reduced, perhaps to seven or 14 days; and
2. A second registered medical practitioner should be required to approve the deprivation other than in emergency cases.

Question 8-3: is the appointment of an advocate always appropriate in all hospital cases, or is there a need for an alternative safeguard (such as a second medical opinion)?

An advocate is always necessary and appropriate in these cases. A second medical opinion would not begin to fulfil the same functions as an advocate.

Question 9-3: should the appropriate person have similar rights to advocates under the Care Act to access a person’s medical records?

Yes. If there is a situation where the person should not access the medical records for any reason then they are plainly not ‘appropriate’ and an advocate should be appointed.

Question 9-4: should Independent Mental Health Advocacy be replaced by a system of Care Act advocacy and appropriate persons?

Although the views of current users of mental health advocacy would need to be given great weight in deciding this question, my provisional view would be yes – on the basis that a single streamlined advocacy and appropriate persons system would be easier to understand and easier to enforce as a right.

Question 11-3: which types of cases might be considered generally to be of “particular significance to the person concerned” for the purposes of the right to appeal against the decision of the First-tier Tribunal?

I do not agree that the appeal right (which in my view should be to the Upper Tribunal) should be restricted in relation to factual disputes to cases which are of “particular significance to the person concerned”. The test should be instead to the effect that there is a significant dispute of fact which may have made a material difference to the outcome of the appeal. This test should be applied by the Upper Tribunal on a case-by-case basis. All cases of restrictive care or treatment will be of “particular significance to the person concerned”, so properly interpreted the proposed filter would have no impact. If it was interpreted restrictively, particularly against a pre-determined list of circumstances, the proposed filter would deny a second hearing to cases which may be felt by the person concerned to matter greatly to them.

I would also observe here (as there does not appear to be another obvious place to address the issue) that serious medical treatment and significant welfare decisions should continue to be determined by the Court of Protection. In those cases the Court of Protection should also be able to discharge the Tribunal review functions in relation to restrictive care and treatment generally to avoid the need for a separate review by the Tribunal.

Question 11-6: how might the First-tier Tribunal secure greater efficiencies – for example, should paper reviews or single member tribunals be used for relatively straightforward cases?

I would have no objection to the use of single member tribunals. However in relation to paper reviews, in my view the decision of Charles J in Re NRA is wrong and an oral hearing is required in every case, at least on the first occasion, this requirement stemming both from common law fairness and Articles 6 and 8 ECHR. I would therefore strongly suggest that the Law Commission should not propose any process whereby appeals against restrictive care or treatment decisions could be determined on the papers. The suggestion that any of these cases will be “relatively straightforward” is dangerous given the importance of the issues at stake for a disabled person who lacks capacity to consent to the relevant care or treatment.

Question 11-7: what particular difficulties arise in court cases that raise both public and private law issues, and can changes to the law help to address these difficulties?

The primary difficulty at present, as noted in the consultation, is the inability of the Court of Protection to compel public authorities to act in accordance with their statutory and common law duties. This could be remedied to a limited extent if appeals against restrictive care or treatment decisions went to the Upper Tribunal which can exercise a judicial review jurisdiction. Consideration may need to be given to whether an appeal could go directly to the Upper Tribunal in a case which raises public law issues.

Question 11-8: should protective care provide for greater use of mediation and, if so, at what stage?

I would be concerned about the widespread use of mediation in cases which engage the fundamental rights of people who lack capacity to consent to their own care or treatment. In such cases the court or tribunal plays a vital role in imposing an independent check on the arrangements. I would not favour the extension of mediation in this area.

Question 11-9: what are the key issues for legal aid as a result of our reforms?

The key issue will be the extension of non-means-tested legal aid to anyone who is appealing a restrictive care or treatment decision. The current position, whereby non-means-tested legal aid is only available to those challenging deprivations of liberty in hospitals and care homes, is in my view absurd and gives rise to a breach of the non-discrimination provisions in Article 14 ECHR. This must be remedied for the new scheme to operate effectively.

Question 13-3: how (if at all) should the law promote greater use of advance decision-making?

In my view the real issue with advance decision-making is not any deficiencies in the legal scheme but the lack of any awareness amongst the general public as to its importance. The remedy is not therefore law reform but a large-scale public awareness campaign.

Question 15-2: is the concept of the zone of parental responsibility appropriate in practice when applied to 16 and 17 year olds who lack capacity.

16 and 17 year olds who lack capacity fall within the scope of the MCA. As such the zone of parental responsibility has little if any relevance for this group. It certainly should not be relied upon to justify taking any significant decisions for a 16 or 17 year old who cannot decide for themselves.

As the consultation paper correctly notes at para 15.10 it is also of limited utility in relation to younger children given that the ‘scope of parental responsibility’ is so poorly defined. I accept however that, given the need to locate the new scheme within the MCA 2005, the position of younger children is outside its scope.

Question 15-5: should a new criminal offence of unlawful deprivation of liberty be introduced?

Although proposed new criminal offences should always be approached with caution, the consultation does appear to have identified a genuine lacuna in the criminal law which ought to be filled.

Proposal 15-6: the Criminal Justice Act 2009 should be amended to provide that inquests are only necessary into deaths of people subject to the restrictive care and treatment scheme where the coroner is satisfied that they were deprived of their liberty at the time of their death and that there is a duty under article 2 to investigate the circumstances of that individual’s death.

The duty to carry out an interest should apply at least to all cases where the person is subject to the restrictive care and treatment scheme and is deprived of their liberty at the time of their death. Consideration should be given to extending the inquest duty to all cases where the person is subject to the restrictive care and treatment scheme, given that by definition they will have been subject to intrusive care or treatment by the state or its agents at the time of their death. There is no warrant for restricting the inquest duty solely to Article 2 ECHR cases – not least because (as in the recent inquest into the death of Connor Sparrowhawk, ‘LB’) the state agencies will often dispute that Article 2 is engaged.

Question 15-9: should people be charged for their accommodation when they are being deprived of their liberty in their best interests – and are there any realistic ways of dealing with the resource consequences if they are not charged?

The second part of this question is a matter for the relevant public authorities. On the question of principle, it is important to note that the care provided to disabled people in accordance with the National Framework for NHS-funded Continuing Healthcare is also provided free of charge. I agree with the suggestion that charging those deprived of their liberty by the state for their accommodation is unfair, essentially for the reasons given in the consultation paper – including the appropriate comparator in such cases.

#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.

#JusticeforLB

#Justiceforallthedudes

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.

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.