rightsinreality

Thoughts on the crossroads of law, politics and society – for when 140 characters just won't do. This blog contains general information and commentary on legal matters. It is not intended to provide legal advice. This blog discusses the law in England, unless otherwise stated.

Challenging local cuts – some key legal questions

Following the political choices set out in the recent Spending Review, it would seem inevitable that local authorities are going to need to make cuts to important services next year, including those provided to children and disabled people. Recent Kings Fund analysis shows that the 2% precept on council tax is a totally inadequate solution to the funding crisis for adult social care. No-one seems to be talking about what the Spending Review means for children’s social care, which wasn’t even mentioned on the Department for Education press release – but it is unlikely to be good news.

The issue now is not whether there should be cuts, but whether the cuts which have to be made are lawful, both in terms of their effect on services and those who use them and the process by which the decisions were made. As Mr Justice Blake said in R (Rahman) v Birmingham City Council (para 46) in relation to the ‘public sector equality duty’ (PSED) found in section 149 of the Equality Act 2010:

Even where the context of decision making is financial resources in a tight budget, that does not excuse compliance with the PSEDs and indeed there is much to be said for the proposition that even in the straightened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater.

In rather an Alice in Wonderland way, Parliament has continued to impose new duties on local authorities at the same time as central government has taken their funding away to comply with them. However this means that councils need to take the hard decisions that will be made in their budgets for 2016-17 and beyond with a crystal clear understanding of their legal obligations. Although there may come a time where a local authority is unable to set a budget which allows it to meet all its legal duties, I doubt we are there yet.

Councils are currently working up and consulting on their budgets for 2016-17, so now is the time when residents and local groups may want to ask some of these legal questions:

Will the council be able to meet all its ‘specific’ statutory duties owed to individual residents? For example:

  1. The duty to meet all ‘eligible’ needs for disabled adults and their carers under the Care Act 2014
  2. The duty to meet ‘eligible’ needs for disabled children under section 2 of the Chronically Sick and Disabled Persons Act 1970
  3. The duty to provide free suitable home to school travel arrangements for all ‘eligible’ disabled children under section 508B of the Education Act 1996
  4. The duty to secure special education provision in education, health and care plans for disabled children and young people in section 42 of the Children and Families Act 2014
  5. The duty to provide advocacy to disabled people and carers during the care and support assessment and planning process under section 67 of the Care Act 2014.

Will the council be able to meet its ‘sufficiency’ duties to have a sufficient level of particular services to meet local needs? For example:

  1. Childcare, including childcare for disabled children up to the age of 18, under section 6 of the Childcare Act 2006
  2. Short breaks for disabled children under regulation 4 of the Breaks for Carers of Disabled Children Regulations 2011
  3. Education and care services for disabled children, under section 27(2) of the Children and Families Act 2014
  4. Children’s centres, under section 5A of the Childcare Act 2006
  5. Services for disabled adults and their carers, under the ‘market shaping’ duty in section 5 of the Care Act 2014

Has the council had ‘due regard’ to the needs specified in the PSED (see above) – for example the need to advance equality of opportunity for disabled people (children and adults)?

Will the proposed cuts give rise to unlawful discrimination between different groups, contrary either to the Equality Act 2010 or Article 14 of the European Convention on Human Rights?

Has the council had regard to the need to safeguard and promote the welfare of children under section 11 of the Children Act 2004?

Has the council treated children’s best interests as a primary consideration in its decision making, as required by Article 3 of the UN Convention on the Rights of the Child?*

Has there been ‘fair’ consultation on the proposals? In particular (quotes are from the leading consultation case of ex parte Coughlan:

  1. Has consultation taken place at a ‘formative stage’, i.e. sufficiently early in the decision making to influence the outcome?
  2. Have consultees been provided with ‘sufficient reasons for any proposal to permit of intelligent consideration and response’ – i.e. do residents know what cuts are being proposed and why?
  3. Have consultees had ‘adequate time’ for consideration and response?
  4. Once the consultation has finished, has ‘the product of consultation’ been ‘conscientiously taken into account’ in the final decision.

Several of these legal principles – for example consultation, non-discrimination and the PSED – apply equally to NHS bodies such as clinical commissioning groups who may also be contemplating cuts to valued services.

If residents and local groups are not getting answers to these questions, or are unhappy with the answers coming back, then the next step may be to consult a specialist solicitor who can advise on whether there may be a challenge via judicial review. It is essential that any challenge to financial decision making is brought extremely promptly – so advice should be obtained before any final decision is made if possible, or otherwise straight after the decision.

It is also important to bear in mind that not all councils are equal – particularly given the increased focus on councils raising revenue from their own areas. Residents and local groups may want to ask questions about what level of reserves their particular council holds – particularly ‘free’ or unallocated reserves. Although spending reserves is obviously only a short term solution, it may be possible to use reserves to mitigate some of the cuts and help with transition to alternative forms of provision.

It is unlikely that legal challenge alone is going to be sufficient where cuts are proposed – there also needs to be political pressure. There are a number of guides for local groups on how to campaign, including campaigning against cuts or to save services. I really like this one from the Every Disabled Child Matters campaign.

Local politics will still come down to local priorities, although the choices will get harder than ever. In the light of the duties above, the law requires councils to give significant priority to services for children and disabled people. It is hoped that the decision by Hampshire not to cut its short breaks budget for 2016-17 is therefore one that other local authorities will follow to the extent they can.

*We can save detailed arguments about whether and why the UN CRC has to be followed when it is not directly incorporated into English law for any case that goes to court.

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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:

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 21st 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 21st 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

No voice heard, all rights ignored?

The train to the Housing and Support Alliance annual conference on independent living and people with learning disabilities seems an appropriate time to set out some thoughts on the Government’s response to the No voice unheard, no right ignored green paper.

‘Not best pleased’ would be one way to summarise the reaction from ‘stakeholders’ (ugh) to the response. Another way would involve plenty of expletives. The title of this post, without the question mark, was the pithy summary from @socialworkops on Twitter.

To understand the frustration it’s important to remember the context for the Green Paper. The former Minister, Norman Lamb MP, had reached a view that all the concordats and agreements in the world were not going to be enough and that legislation was required to give new hard-edged legal rights. There was plenty of room to debate what those rights should be (I had my tuppence here) but the principle seemed clear – new legislation was needed.

However after the General Election Mr Lamb was no longer Minister and the new government seems rather less enthusiastic about legislating in this area. The response was delayed and when it finally arrived it could be summarised (fairly?) as ‘issue some guidance and kick the rest into the long grass’. Or in the language of the consultation, the proposals ‘should be seen as part of an ongoing and evolving dialogue’ (p6, para 7). Let us know when you’re ready to stop talking and actually do something.

Another part of the frustration, as Rob Grieg puts very well here, is that we’ve had very good strategies and guidance for learning disability for years in the form of Valuing People and Valuing People Now. We don’t need another strategy or more guidance, we need some real action to deliver these shared goals.

So does the response meet the two tests in its title? In terms of voices heard, Chris Hatton has done some excellent comparisons between the Valuing People Now consultation and this consultation. Chris shows that the Department has heard from far fewer disabled people this time round – which is unacceptable as government should be getting better over time at engaging with the people their policies affect, not worse. As Chris says, when properly analysed ‘The numbers of people responding to the NVUNRI consultation start to look perilously small’.

And on the second test – well, it’s pretty clear that the Minister’s vision of new hard-edged rights has been ignored. In legal terms, guidance can be very important. It all depends on its legal force – some guidance must be followed by decision makers in the absence of a considered decision that there is good reason not to do so, other guidance (‘have regard’ guidance) is just something that decision makers must take into account.

However it’s surprising (to put it mildly) that the Department doesn’t appear to know yet which laws it will use to issue the guidance here. See para 8, p6; ‘we will rapidly determine the most appropriate powers under which to act to have the best and strongest effect’. Again, let us know when you’ve made your mind up.

So whether the guidance is likely to be legally important depends on what the Department eventually decide in relation to the powers they will use to issue it. But what about its practical effect? Experience suggests that the likely fate of more guidance is to end up on more shelves. I’m not saying for a moment that if Parliament passes new laws they are automatically followed (hello, Care Act 2014) but the chances of cultural change must be must higher when there is new primarily legislation, not merely further guidance. Surely? Please let this be true or we are wasting a lot of money on those MPs…

Also, guidance cannot create new legal rights and duties – it can only reflect existing law. So if (as we are told at p14, para 41) there was ‘strong support for proposals about NHS commissioners sharing duties to promote individual wellbeing in the Care Act 2104 with local authorities’, why not get on and legislate for this now?

It is also concerning that even phase 1 of the proposals (which includes the new guidance) will take place ‘during the current financial year (2015/16) and into 2016/17’ (p9, para 15). So we may have to wait quite a while even to see the guidance. The grass for the guidance may not be long, but it could certainly use a trim.

There are some more interesting ideas in phase 2, including the named social worker proposal (*cough* funding *cough*) and the idea of extending Care and Treatment Review principles to local authority-led placements. However there is no timeframe for this phase. We are told at para 16, p9 that ‘This phase will involve further consultation with stakeholders, with any resulting legislation to be introduced as soon as parliamentary time allows’. So not only will there be more consultation (why?), but the real mischief here is that there is no legislative slot allocated for any Bill in the Parliamentary timetable. Doesn’t look from this like there is any chance of new legislation until the end of next year at the earliest – hope I’m wrong.

Phase 3 is described as ‘more radical solutions’, however the summary only lists two:

  • ‘monitor implementation of the new service model for commissioners of health and social care services, and of CTRs on care planning, admissions, transfers and discharges and consider the need for further legislative proposals in response to review of impact’. I’ve read this three times and I’m still not sure I understand what it means.
  • ‘further consideration in principle of whether and how the Mental Health Act should apply to people with learning disabilities and/or autism and if this remains appropriate’. I know this is a controversial issue but surely the point of the Green Paper consultation was to allow the Department to reach a view on the principle here, subject to further consultation on the detail? As I read this it essentially means ‘no change’. Note also (p21, para 81) that ‘some stakeholders, especially individuals, their families and supporters, and the voluntary and community sector were keen on the principle that some sort of change was needed’ (emphasis added). No voice unheard?

So that’s the government response. I’d contrast it to the coherent package of new rights that we have set out in the second draft of #LBBill, with input from a wide range of disabled people, families, professionals and allies. Of course a key difference is that #LBBill is trying to improve the legal framework so disabled people can realise their right to independent living and community inclusion generally, and the Green Paper response is trying to fix one part of the problem for one specific group of disabled people (supposedly ‘the people who need most help’, see the response at p12, para 31). Even if I fundamentally disagree with the second approach, it is still terrible to see the opportunity to strengthen the rights of this group lost.

Two slivers of light:

  1. New guidance won’t necessarily be useless. It all depends what it says and even more importantly what statutory force it has. Let’s hope it is strong and clear guidance with the greatest possible legal force.
  2. The Law Commission are working up proposals for a new scheme to replace the Deprivation of Liberty Safeguards which may yet result in legislation that contains some of the #LBBill ideas. Given the Department’s response, there’s now a huge amount riding on the Law Commission’s draft Bill due in 2016.

Other than that, looks like it’s back to the private members’ bill ballot for #LBBill in summer 2016.

I can’t let this piece end without highlighting something said in the Minister’s foreword to the response (p4). Towards the end of his piece, the Minister (Alistair Burt MP) says; ‘As a country, a key measure of our success will be how we care for the weakest and most vulnerable in our communities’. There are so many things wrong with this sentence it’s hard to know where to begin – so I’ll just suggest that if anything makes people with learning disabilities ‘weak’ and ‘vulnerable’ it’s government policies and state actions, from cutting social security and legal aid to detaining people without lawful authority. It’s hard to see how any real change can come from a position where disabled people are perceived as weak and vulnerable victims needing to be saved.

In defence of Article 5 and the right to liberty – North Yorks CC v MAG

This post is about a judgment of the Court of Protection which shows the continued force of Article 5 of the European Convention on Human Rights in protecting disabled people’s fundamental rights.

Article 5 protects the right to liberty. As most people reading this blog will be aware, the Supreme Court handed down a judgment known as ‘Cheshire West’ last year which made clear that disabled people have the same right to liberty as the rest of the population. As a result, if a person is subject to continuous supervision and control and is not free to leave their accommodation, there will be a deprivation of liberty which has to be approved and justified to avoid a breach of Article 5.

The problem comes with the tortuous way the relevant authorities have decided to manage the requirement to approve deprivations of liberty for disabled people. For example the ‘deprivation of liberty safeguards’ (DoLS) are almost universally disliked. The recent Law Commission consultation on a new system said there was a ‘compelling case’ for replacing them, not least because they are ‘perceived to be overly technical and legalised’ and ‘not meaningful for disabled people and their families or carers’ (para 2.41).

One of the most welcome aspects of the Law Commission’s proposals for a replacement system is the focus on disabled people’s wider human rights, in particular the rights protected by Article 8 ECHR – the right to respect for private life, family life and the home. Article 8 is the space where considerations of vital issues like human dignity often come into play. However Article 8 is a ‘qualified’ right – which means that considerations like the financial resources of the state are relevant when the courts consider how far public bodies have to go to make Article 8 rights real. This is a major reason why Mrs McDonald’s challenge to the decision that her nighttime care should be replaced with incontinence pads failed in the European Court of Human Rights – once the local authority got the process right and completed the required reassessment, the court was not prepared to find a breach of Article 8 because it is generally up to the state how public funds are allocated.

Article 5 ECHR is different however. The right to liberty is absolute – it can only be interfered with for the reasons set out in Article 5. The state is not entitled to deprive a person of their liberty simply because it would cost less than to meet their needs in a less restrictive way.

The difference this makes is played out in North Yorkshire County Council v MAG and others [2015] EWCOP 64, a judgment handed down this summer (13 July 2015). The issue in the case was whether the Court of Protection should authorise the deprivation of liberty which resulted from the care arrangements for a 34 year old severely disabled man, MAG. The judgment makes clear that:

  • MAG had been in his accommodation for around 9 years, since 2006
  • The property was too small for him to use his wheelchair indoors, so he had to move around by crawling and pulling himself along the floor
  • Because the property only had one bedroom it was too small for sleep-in staff, who would have been less intrusive for MAG
  • The property had no outside space, so when MAG was not taken out he was confined indoors

The local authority appears to have accepted that a move would be desirable for MAG (see para 16 of the judgment), but the Judge characterised its case as follows (para 12): ‘this case has been before the court for four years during which time it has been required by the Official Solicitor to identify alternative options which it says its search has proved are simply not available’. On this basis the local authority sought final declarations, including approval of the resulting deprivation of liberty for MAG.

Importantly in my view, the Judge visited MAG in the property. His findings from the visit were recorded at para 20 of the judgment:

20 The problem is that MAG’s flat, at which I visited him on 20 February 2015, is so small that his wheelchair cannot be used indoors. The corridor leading from the bedroom to the lounge and kitchen is too narrow to move a wheelchair into those rooms. He moves around the flat on his bottom and using his hands and knees. This has resulted in him sustaining painful bursitis in both knees and he has calluses to his knees and ankles. Ms Hutchinson [learning disability nurse and best interests assessor] advised that MAG’s current property does not meet his needs and that he should be able to live in a property which ensures he can live a life with dignity and comfort and which does not cause him physical or emotional harm.

Also importantly, MAG’s living arrangements were ‘supported living’, which falls outside the scope of the DoLS. As such, the only way the local authority could avoid a breach of Article 5 was to have the deprivation of liberty authorised by the Court of Protection, see para 21.

The local authority’s position was clearly set out at paras 22-23 of the judgment:

22 NYCC accepts that the current placement involves a deprivation of liberty and that there is no immediate alternative residential option. It seeks the authorisation of the court for MAG’s continued deprivation of liberty on the basis that it is justified as a result of his condition which renders the restrictions proportionate and necessary. NYCC says that the issues raised by the expert, Christine Hutchinson, and the Official Solicitor relate to whether the outcome could be achieved in a less restrictive manner but that there are no less restrictive options available. Where it has been possible to make adjustments to achieve a less restrictive outcome, such as time spent in the community, this has been done.

23 NYCC says that on the basis that the position is clear and the court does not have the jurisdiction to require it to find another property which would not ordinarily be available to MAG, all steps that he could take if he did not lack capacity, have been taken by it. The accommodation at the Tenancy and his care package which mean that he is not permitted to leave unaccompanied and is under continuous supervision and control, have the effect of depriving MAG of his liberty. The outcome cannot be achieved in a less restrictive way and the restrictions in place are necessary and proportionate. On that basis the deprivation of liberty should be authorised by the court.

So the local authority’s case was clear – there’s nothing else available, so the Court should authorise MAG being deprived of his liberty in his accommodation notwithstanding its flaws.

The Official Solicitor, representing MAG, did not accept this. His first argument was recorded by the Judge as follows (para 28): ‘The Official Solicitor makes the point that the reference in Re MN to the ability of the Court of Protection to explore the care plan put forward by a public authority and the inability of the Court to compel a public authority to agree to a care plan which it is not willing to implement does not apply when the issue is the right to liberty under Article 5. I accept that analysis.’

This is really important – because the general rule (being confirmed by the Court of Appeal in Re MN) is that the Court of Protection cannot require a public authority to act in a particular way. The Judge here accepted the Official Solicitor’s submission that this rule does not apply when what is at stake is the right to liberty under Article 5.

The Official Solicitor’s position was that the ‘narrow corridors, lack of outdoor space, lack of privacy and lack of a wheelchair (when his needed repair and no replacement was made available) amount to a disproportionate deprivation of liberty in this case’ (para 33).

The Judge made two important findings at paras 35-36:

35 I accept the Official Solicitor’s submission that the authorities in this case were not willing to initiate a search for alternative accommodation unless and until the Court decided that it was in MAG’s best interests to move in spite of the fact that the Commissioners had decided in 2013 that it was in his best interests to move to a less restrictive environment.

36 I accept that there was culpable delay on the part of NYCC in finding a less restrictive property…

The Judge’s final decision was relatively short and for ease of reference I set it out in full below:

Decision
37 On behalf of MAG the Official Solicitor outlines the decision I have to make as being whether the interim authorisation ought to be continued in light of what he characterises as the overly restrictive intensity of MAG’s deprivation of liberty. NYCC and the CCG require the authority of the Court lawfully to deprive MAG of his liberty in order to act compatibly with Article 5. There is no dispute that there is a deprivation of liberty in this case.

38 I accept the Official Solicitor’s submission that the central issue is not whether MAG’s confinement is properly justified by the fact that no alternative accommodation is available. It is whether, as set out in the closing submissions on behalf of MAG, ‘…the persistence of his unsoundness of mind justifies the validity of his continued deprivation of liberty: Re X [2014]
EWCOP 25 , para 14; KC v Poland (Application no. 31199/12), para 70. In this regard it is crucial to note the Strasbourg Court’s view in Stanev v Bulgaria (2012) 55 EHRR 22 para 153:“… the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty.”’

39 I accept the submission on behalf of MAG that it is the authority’s failure in its attitude towards the search for less restrictive accommodation which has caused significant delay and lengthened these proceedings. I am urged by the Official Solicitor not to authorise this deprivation of liberty because it is unwarranted because the intensity of the measures and in particular those which result from the environmental features of the property are not justified and proportionate. MAG
has remained at the Tenancy for nine years and been subject to a deprivation of liberty there. He has no choice but to mobilise on his hands and knees which has caused physical problems including Bursitis and a recurring fungal infection in his thigh. He does not have access to suitable outdoor space and sleeping night support is not possible in the absence of a second bedroom. The only private space he has is his own bedroom.

40 On behalf of the CCG I am urged not to refuse the authorisation on the basis that if I do so there will be a lack of clarity about MAG’s position and that of NYCC in relation to its property search. In response it is argued on behalf of MAG that not to continue the interim authorisation will result in a substantive breach of Article 5 which will ensure that proactive steps are taken by the statutory authorities to locate a less restrictive living environment.

41 I have considered the submissions of the parties and in this case I have the benefit of having seen MAG at the Tenancy. As I have indicated already, I accept the submissions of the Official Solicitor in relation to the issues with the current accommodation and on that basis I consider that I cannot endorse a care regime which risks breaching MAG’s right to liberty. This may be all that is available at present but I am not satisfied that NYCC has taken the steps necessary to ensure
that there is no breach of its obligations. I am aware of the steps which have been taken recently. However, MAG’s needs were identified by the assessment in 2006. It is clear that the Tenancy does not meet those needs and that should have been clear when the property was identified by GC in 2006. In 2013 the Commissioners accepted a move would be in MAG’s best interests and would be less restrictive. This is a question of MAG’s liberty and I do not accept that I can
authorise the deprivation of that liberty on the basis that nothing else is available. He has been in this unsatisfactory situation for a prolonged period. NYCC has been extremely slow to accept its responsibilities in relation to rehousing him. These proceedings started in 2011 and it was not until 2 August 2013 that it accepted it owed a duty in this respect.

42 Refusing the authorisation sought means that NYCC must take the steps necessary to ensure that there is no breach. In all the circumstances, I am not satisfied that I should make the declaration sought by the local authority and I will not authorise the deprivation of liberty in its current form.

Some observations:

  1. The Judge (in my view correctly) highlighted what was said in the Stanev case, that ‘the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty’.
  2. As such the real issue was not, as the local authority (and CCG) said, the fact that there was nothing else available. The issue was whether the deprivation of liberty caused by MAG’s living arrangements could be justified.
  3. The ‘failure’ in the local authority’s ‘attitude’ in searching for less restrictive accommodation was clearly central to the Judge’s decision – see para 39.
  4. The Official Solicitor expressly argued that the effect of the Court refusing to authorise the deprivation of liberty would be to ‘ensure that proactive steps are taken by the statutory authorities to locate a less restrictive living environment’ – in other words to force them to move MAG as quickly as possible to bring the breach of Article 5 to an end (see para 40).
  5. The Judge’s ultimate conclusion (para 41) was as follows: ‘I consider that I cannot endorse a care regime which risks breaching MAG’s right to liberty. This may be all that is available at present but I am not satisfied that NYCC has taken the steps necessary to ensure that there is no breach of its obligations.’
  6. The Judge agreed with the Official Solicitor (para 42) that ‘Refusing the authorisation sought means that NYCC must take the steps necessary to ensure that there is no breach’.

In my view the approach of the Court in this case is not without its problems. Giving such weight to the local authority’s failure to move MAG raises the question of how much effort is required before the Court would authorise a deprivation of liberty in arrangements which were less than suitable for the disabled person.

However what this case does is show that Article 5 offers real protections for disabled people, the effect of which can go beyond the qualified requirements of Article 8. It is important that whatever new scheme ultimately replaces the DoLS recognises this – something that no doubt the Law Commission have well in mind.

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.

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.

The health / social care divide for disabled children – consultation on draft National Framework for continuing care

If the dividing line between local authority and NHS responsibilities for meeting the needs of disabled adults is hard to find, the line for disabled children is practically invisible. In my experience this can cause real problems as agencies argue about who is responsible for meeting severely disabled children’s needs. Alternatively it may result in one agency (usually the local authority) taking on responsibilities which go beyond its legal duties or powers.

Since 2010 we have had a National Framework in place for children and young people’s continuing care. This sets out the point at which the NHS should take lead responsibility for meeting disabled children’s needs and the process by which packages of support should be put together – although troublingly it is merely guidance and has no express legal force.

The Department of Health is currently consulting on a revised draft Framework. The consultation closes next Friday, 23 October 2015 (very precisely, at 11.45pm that day). I would urge everyone who is concerned to see that the needs of the most severely disabled children are properly met to engage with the consultation and comment on the draft. There doesn’t appear to be an Easy Read version of the consultation which is an issue that people may want to take up with the Department.

From my perspective I’m concerned that the draft Framework doesn’t properly address the health / social care dividing line. It seems to assume that in every case there will be a mixed package of care – but some disabled children have care needs which are the sole responsibility of the NHS following the Haringey judgment.

There are several other concerns I have with the draft Framework, not least the focus on children who have Education, Health and Care Plans which will only be a small minority of disabled children, and far from all those who are eligible for continuing care. All these concerns are summarised in my response to the consultation – I’ve pasted sections of this below in case it helps others who are yet to respond.

There are some very good things about the draft Framework – not least the clear statement at para 21 that ‘A decision on the package of continuing care that may be provided should not be budget or finance-led: the primary consideration should be supporting the child or young person’s assessed needs and outcomes’. I hope the Department will make the necessary amendments to the draft Framework and issue a new final Framework as quickly as possible. The current Framework from 2010 is no longer fit for purpose in the light of the massive change in NHS structures and processes since that date.

These are the key parts of my response to the consultation:

4. Does the framework adequately define the scope of children and young people’s continuing care?

No.

The draft Framework begins at para 1, p6 by defining continuing care by reference to cases where a child has ‘complex needs which cannot be met from the health services routinely commissioned by clinical commissioning groups (CCGs) or NHS England’.

The problem with this approach is that it ignores the complex issue of the dividing line between local authority and NHS responsibilities for disabled children with complex needs. The sole focus on whether the child’s needs are such that they cannot be met from universal health services obscures what is often a very important issue, being whether the responsibility for meeting those needs falls to the local authority or the NHS body (normally the CCG).

The current Framework (2010) contains (at Annex D) a summary of the leading case on this issue, being R (T, D and B) v Haringey LBC and Haringey Teaching PCT [2005] EWHC 2235 (Admin). There is guidance in the 2010 Framework that ‘PCTs and local authorities should take into account this piece of case law in their processes for deciding on and putting in place packages of continuing care.’ On p9 of the 2010 Framework, it is said that the Haringey judgment ‘determined that the Coughlan criteria, used to determine whether a local authority or a primary care trust should provide required services to an adult in need of NHS continuing care, applied equally to children.’ However there is no mention of the Haringey judgment in the current draft Framework. This is in my view a surprising and unhelpful omission, as a key function of guidance must be to distil the principles from complex case law into useful advice for professionals.

In my view the key question determined by in the Haringey judgment is the limit of the scope of local authority responsibilities for disabled children. The High Court held (para 68) that it was not permissible for the broad duty in section 17 of the Children Act 1989 to extend to meeting ‘essentially medical needs’. This would turn local authorities into a ‘substitute or additional NHS for children’ which was an ‘impermissibly wide interpretation, creating obligations on a social services authority which are far too broad in the context of other statutory bodies and provisions covering the needs of children’.

As such there is clearly a line across which local authorities must not provide services for disabled children, and the responsibility for providing those services falls solely on the NHS. However it is entirely unclear from the current draft Framework where the Department considers that line to lie. What is said at para 8, p7 is that ‘Where appropriate, continuing care should be part of a wider package of care, agreed and delivered by collaboration between health, education and social care’. Similarly at para 27, p9 it is said that ‘a child…with continuing care needs may require services commissioned by the local authority’.

In my view the Framework needs to give guidance as to when this is appropriate and when the needs should be met solely by the CCG or NHS England. At the very least reference needs to be made to para 68 of the Haringey judgment and the touchstone that the local authority must not act as a ‘substitute or additional NHS for children’. Consideration should be given to including an updated version of the summary of the Haringey judgment in Annex D to the 2010 Framework as an annex to the updated Framework.

5. Does the Framework set out a clear process?

No.

The process for determining eligibility for children’s continuing care remains relatively clear – although serious concerns remain that this process has no statutory force as the Framework will not (as I understand it) be backed by directions.

However what is unclear is the relationship between the Framework and the reformed scheme for meeting the wider needs of children with special educational needs and disabled children introduced by Part 3 of the Children and Families Act 2014. In particular there appears to be an assumption that children who are eligible for continuing care will have an Education, Health and Care (EHC) Plan – see para 2 of the Executive Summary on p5.

The test for an EHC Plan to be issued is that it is ‘it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan’; section 37(1) CFA 2014. As such it is only those children with significant special education needs who will benefit from a new joined-up plan – no matter how complex their health needs may be.

It is therefore essential that the Framework gives guidance on how the Department anticipates that children’s health, educational and care needs are co-ordinated in cases where the child is eligible for continuing care but not eligible for an EHC Plan. This should include more detailed reference to the duty (mentioned at para 40, p11 of the draft Framework) under section 26 CFA 2014 to have in place joint commissioning arrangements for all disabled children and children with SEN, not just those with EHC plans.

10. Does the framework explain how the Education, Health and Care plan process relates to the continuing care process?

No.

Firstly, it does not deal with the situation where a child has complex health needs and some special educational needs, but not a sufficient level of special educational needs to require an EHC Plan to be in place – see answer to question 5 above.

Secondly, the guidance at paras 44-49, p12 is unclear in several important respects:

  • If it is not of benefit to ‘completely integrate’ the EHC plan assessment and the continuing care assessment given the wildly different timeframes for these processes (para 45), how should the two processes inter-relate?
  • At para 46 it is said that the ‘health assessor’ is responsible for ‘social care and health input to the co-ordinated process’. However for EHC assessments the social care input is the responsibility of the local authority under regulation 6(1)(3) of the SEN and Disability Regulations 2014.
  • The suggestion at para 48 is that because the new SEND arrangements extend up to 25, there will be young people aged 18 or over governed by the adult Continuing Healthcare framework where ‘The local authority may not have any responsibility towards the young person’. However by virtue of the SEND arrangements continuing to apply the local authority will still have responsibility for securing the special educational provision in the EHC Plan, see section 42(2) CFA 2014. It is suggested at para 48 that ‘The local authority would still take the lead in co-ordinating the EHC plan but the services they were ultimately responsible for securing would be negligible’. Is the Department suggesting that the CCG or NHS England would take on the responsibility for securing the special educational provision in those cases? This would seem to me to be a highly surprising conclusion and also plainly wrong.

System change for disabled children – the Local Offer and SEND reforms one year on

We are now one year on from implementation of the SEN and disability reforms introduced by Part 3 of the Children and Families Act 2014 (‘CFA’). To no-one’s surprise the picture on progress is at best mixed. Introducing wholesale system change at a time when local authority budgets have been reduced by 40% over the past five years was never going to be straightforward. As the report on the pathfinder programme was only published this July I imagine we will need to wait a while before any official evidence on progress made under the CFA.

At an individual level I continue to hear utterly depressing accounts of the new Education, Health and Care Plan (‘EHC Plan’) process resulting in absolutely no benefit for children and families. Plans are being issued with no outcomes or outcomes drafted in the blandest terms, social care sections simply saying ‘not known to social care’ and no engagement at all from health. This survey by Special Needs Jungle should help show how widespread are these problems. While there may well be excellent EHC Plans being issued, flagrantly unlawful ones are certainly far from unique.

The Department for Education has just issued new advice to confirm that local authorities are being given longer to complete the transfer process and produce EHC Plans – as introduced by secondary legislation. The main change is that the maximum time for a transfer review for the move from a statement to an EHC Plan has been extended from 14 to 18 weeks. As I suggested this as an urgent action the new government needed to take, I obviously welcome this as a sensible move. However it remains to be seen whether local authorities will now be able to carry out proper EHC assessments and take new advice in every transfer case unless all parties including the parents agree that previous advice is sufficient, as the regulations require; see IPSEA’s summary of the transfer process.

The focus for this post though is one of the key system level reforms introduced by the CFA 2014 – the ‘Local Offer’, as required by section 30 CFA. I’ve written previously about the delays in introducing a lawful Local Offer in many areas. However since that time a number of local areas now have Local Offers which are highly compliant with the statutory requirements and as a result provide a valuable guide to local provision for children, young people and families. Other local areas, shall we say, haven’t done this.

The next question is whether these Local Offers can fulfill their second purpose – ‘To make provision more responsive to local needs and aspirations’ (see the SEND Code of Practice at para 4.2). The mechanism to achieve this is the requirement for local authorities to publish comments on the Local Offer. This requirement is imposed by regulation 56 of the SEN and Disability Regulations 2014.

Regulation 56 imposes a positive duty on local authorities to ‘seek’ comments on its Local Offer from children, young people and parents. Importantly, comments should be sought not just on the Local Offer itself (e.g. is it searchable, is all the information accurate) but also on ‘the content of its local offer, including the quality of the provision that is included and any provision that is not included’. These comments must then be taken into account when the local authority carries out its review of the sufficiency of provision in its area, as required by section 27 CFA.

Why is this particularly relevant now? Because regulation 56 requires that local authorities must publish the comments they receive on their Local Offers ‘at least annually’, on an anonymised basis. Given that Part 3 CFA and the regulations came into force on 1 September 2014, that means every local authority should now have published its first set of Local Offer comments ‘on its website, with the local offer’.

If you are a child, young person or parent who has made a comment on your Local Offer, then now would be the time to check that it is up in lights. If it isn’t, then you may want to highlight to officers and Members that publication is overdue.

If you haven’t yet commented on your Local Offer but have something to say about ‘the quality of the provision that is included and any provision that is not included’, please do comment. It seems to me that effective use of the Local Offer comments facility is the best tool we have to hold local authorities to account in the services and support provided to children, young people and families.

Two important points to note on the Local Offer comment facility. Firstly, it must not be used as a way to make complaints about ‘services provided to a particular individual’. The local authority and NHS complaints process exist for this purpose. Secondly, a local authority is not required to publish any comment which it ‘considers to be vexatious’. The term ‘vexatious’ is not defined in the regulations; under the general legal approach a vexatious comment would be one where the purpose is purely to annoy the local authority and its officers. This is plainly a high bar and means that the vast majority of comments which relate to services generally, including highly negative comments, should be published.

I would be keen to hear about experiences of using the Local Offer comments facility – whether you could find out how to make a comment on your Local Offer easily, whether your local authority sought your comments as the regulations require whether your comment has been published and whether you have seen any difference as a result. Please leave any feedback on these issues below.

Kids Company – a symptom of system failure for children in need

Charities deliver some of the most innovative and highest quality services to children and families. But we can’t have charities taking on the responsibility for ensuring children’s needs are met – for the simple reason that it’s 2015, not 1890.

That responsibility must sit with statutory bodies, in particular local authority children’s services and the local NHS in the form of the new clinical commissioning groups. Yet the reality is that these bodies are overwhelmed and are unable to meet a fraction of the needs of the children for whom they are responsible. My colleagues who wrote this letter to the Guardian are plainly right that it is ‘pure fantasy’ that with the closure of Kids Company the statutory bodies will suddenly be able to meet these children’s needs.

It’s now 25 years since the Children Act 1989 (‘CA 1989’) came into force. It would therefore be reasonable to assume that we would have a secure legal duty which would require the state to ensure that the additional needs of children are met. Yet this simply isn’t the case; in fact, the majority of children who require extra help do not have an enforceable right to this help.

Part III of the CA 1989 is headed ‘Local authority support for children and families’. It begins with section 17, titled ‘Provision of services for children in need, their families and others’.

So to understand what section 17 does we need to know who ‘children in need’ are – and the definition is in sub-section 10. There are three sub-groups of children in need. One of these groups is ‘disabled’ children. The other two groups are:

  • children who are ‘unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision…of services by a local authority under this Part’; and
  • children whose ‘health or development is likely to be significantly impaired, or further impaired, without the provision…of such services’.

So children are ‘in need’, in short, if they need additional help from their local authority to safeguard or promote their welfare. This is a low threshold and most if not all of the children previously helped by Kids Company would meet it.

So far so good. The problem arises when we look at what it is said local authorities must do for children in need. Sub-section 17(1) reads:

It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children’s needs.

So local authorities have to provide ‘a range and level of services’ for children in need. But does this give an individual child a right to a service? By a majority of 3-2 the House of Lords in R (G) v Barnet said not. At para 91, Lord Hope held that section 17(1) ‘sets out duties of a general character which are intended to be for the benefit of children in need in the local social services authority’s area in general’. The contrast here is with a ‘specific’ duty, which is owed to individuals and gives those individuals an enforceable legal right to whatever it is that the duty mandates.

So the position is clear. Following the Barnet case, although there is a duty to assess the needs of children in need there is ‘not…a duty to provide the assessed services’ for any individual child; see Lord Justice Munby in R (VC) v Newcastle at para 21.

In the Barnet case, Lord Nicholls (who was in the minority) said that the majority’s interpretation of section 17 made it ‘a poor sort of additional general duty’ (para 28). I would go further; the absence of a specific right to services means the statutory scheme for children in need is not fit for purpose.

What does this mean in practice? It means that local authorities must have services and support available for children in need generally in their area. Some children in need must be able to access those services and support. The decision as to which children are supported must be made rationally, reasonably and fairly. However local authorities will be entitled to refuse to meet the assessed needs of some children in need, including on resource grounds.

Section 17 is not the end of the legal story in relation to the children previously helped by Kids Company. For example:

  • ‘Disabled’ children (including children with learning disabilities and mental health conditions) have a specific right to services under section 2 of the Chronically Sick and Disabled Persons Act 1970, which I have written about here and here.
  • Children who do not have a parental figure who can provide them with suitable accommodation and / or care must be accommodated by the local authority under section 20 of the Children Act 1989. These children then become ‘looked after’ by the local authority in the same way as children in care and have a specific right to services and support to safeguard and promote their welfare. The resource consequences of this must be why, more than six years after the landmark Southwark judgment, we still see local authorities trying to avoid their duties under section 20 by reference to less onerous statutory obligations.
  • Where a child is suffering or is likely to suffer ‘significant harm’ then the local authority must investigate under section 47 of the CA 1989 and take appropriate action, which may include steps to take the child into care.
  • Section 11 of the Children Act 2004 requires local authorities to have regard to the need to safeguard and promote children’s welfare in everything they do. This duty can easily be breached when decisions are taken which affect children, for example Westminster’s decision to accommodate a homeless family in Milton Keynes.
  • There may be human rights obligations to provide support to children. Both Article 3 (right to freedom from inhuman and degrading treatment) and Article 8 (right to respect for family and private life) of the European Convention on Human Rights may require services to be provided to secure a child’s welfare – and these rights are embedded in English law through the Human Right Act 1998. Moreover the Supreme Court has recently emphasised the importance of the obligation in Article 3 of the UN Convention on the Rights of the Child to treat children’s best interests as a primary consideration in decisions affecting them – see my posts on the benefit cap case and Mathieson (the ‘DLA takeaway’ case) for more on this developing area.

All of these sources of legal obligations on local authorities are important. But none of them make up for the lack of a clear enforceable right to support for all children in need. Take Article 3 of the UN CRC as an example; a local authority considering whether to provide services to a child in need must take that child’s best interests as a starting point (‘primary consideration’) but may ultimately decide that other considerations (i.e. its budget) mean that services will not be provided. Is that really good enough as a legal scheme to protect children’s basic rights?

Many of the children helped by Kids Company will have complex mental health needs, some with formal diagnoses and others without. Yet the legal duties in relation to the provision of child and adolescent mental health services (CAMHS) are even less clear than those on local authorities in relation to children in need. This timeline from Young Minds sets out a host of reports, strategies and task groups to improve CAMHS services. Yet the reality is cuts to funding coupled with the absence of any clear legal rights for children and young people to access mental health services. NHS bodies provide CAMHS services under the NHS Act 2006 (as amended by the Health and Social Care Act 2012 to put the focus on clinical commissioning groups in relation to the provision of services) and the Mental Health Act 1983 and local authority input is underpinned by the Children Acts. None of this legislation creates any rights for an individual child to access CAMHS services.

There has been plenty written in recent weeks about the closure of Kids Company. The most clear-sighted article I’ve read was Zoe Williams’ Guardian interview with Camilla Batmanghelidjh. However for me the most telling part of the article was not anything said by Ms Batmanghelidjh but the comments of Mike Gee, the charity’s safeguarding manager. Zoe Williams’ summary of Mr Gee’s position is that ‘Kids Company didn’t have an adversarial relationship with the statutory services, but that those services were under so much pressure that they couldn’t afford to recognise the intensity of the need many children were in’. For anyone who has represented children in need and their families struggling to get support from a local authority this will have a huge ring of truth.

Despite the absence of the kind of specific duty that would give proper protection to all children in need, this article still suggests blatantly unlawful practice by public authorities. It is said that:

  • Statutory services ‘couldn’t treat those without a significant mental-health diagnosis’. This isn’t a legal eligibility criteria for support either from local authorities or the NHS.
  • Statutory services ‘wouldn’t recognise the illegal ones (trafficked and migrant children) as even real’. Trafficked and migrant children cannot lawfully be excluded from support on the basis of their immigration status. Indeed a prime purpose of the section 17 duty is to provide support to children and families who cannot access mainstream housing or other services by reason of immigration problems – see the Court of Appeal’s judgment in Birmingham CC v Clue.
  • ‘Without criticising Camhs, the window for statutory help – ill enough for a diagnosis, but not so ill that your behaviour is unacceptable – seems rather narrow’. If that were the window then CAMHS should surely be criticised – but it isn’t. CAMHS is a tiered service (graded 1-4), and children and young people with greater levels of need should be helped at a higher tier. Nor should there be any need for a formal diagnosis for low level support.

It is blindingly obvious that local authorities and NHS bodies don’t have the resources required to meet the needs of the children who were previously supported by Kids Company. What is perhaps more surprising is that the law doesn’t require them to do so. Without a proper framework of rights for these children to access the services and support they need from the state it is impossible to see how the services they require will ever be effectively resourced. And as a society we will continue to outsource the responsibility for meeting the needs of our children to charities, with all the risk this entails.

The rights of siblings of disabled children

This post considers the rights of an often-neglected group of children – siblings of disabled children (also known as ‘brothers and sisters’ off Planet Social Care). Given there are 700,000 disabled children, that’s an awful lot of siblings whose interests are being neglected.

I’d been meaning to write this post for a while as the issue comes up regularly when I speak to parent forums, but it went to the top of the list after I saw this powerful article from Saba Salman, focusing on adult siblings (who have new rights as carers under the Care Act 2014). For this post I’ll use the shorthand ‘siblings’ to mean a child who is the brother or sister of at least one disabled child.

The starting point is of course that siblings have the same rights to access universal and mainstream services as all other children – schools, playgroups, children’s centres and so on. Siblings also have the right to access these services without discrimination ‘by association’ – meaning they cannot be discriminated against because of their connection to a disabled child. There is an example of this in government guidance:

Sonali is refused a place at her local playgroup because the management committee knows that her younger brother has cerebral palsy. They operate a policy of automatically offering places to siblings and they are concerned that looking after her brother would take too much time. This is direct discrimination against Sonali because of her association with her brother.

However, it appears that discrimination by association only covers instances of direct discrimination and harassment – for example, the Court of Appeal has held that there is no entitlement to reasonable adjustments by association with a disabled person.

What about entitlements to additional support for siblings, over and above the services available to other children? There are two potential routes to access this support – the ‘child in need’ route and the young carers’ route. Both routes are linked and are considered in turn below.

Firstly in relation to the child ‘in need’ route, it is important to bear in mind that under section 17(3) of the Children Act 1989 services can be provided to any member of a child in need’s family, if it is provided with a view to safeguarding or promoting the welfare of the child in need. As all disabled children are children in need*, a local authority may therefore provide any services it wishes to a disabled child’s sibling(s) where these would safeguard or promote the disabled child’s welfare. An example might be to fund a regular activity session for the sibling to help reduce tension where the relationship between the sibling and the disabled child is deteriorating.

Secondly, siblings may themselves be children in need – not least because of the impact of them of the needs of their disabled brother or sister (or more accurately perhaps the lack of support their disabled brother or sister receives). Assuming the sibling is not themselves disabled* then they would need to meet the tests in section 17(10)(a) or (b) to qualify as ‘in need’. These are that:

a. he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; or

b. his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services.

Either or both of these tests may well be met where, for example, a sibling is living with a child with autism in unsuitable or overcrowded accommodation and is unable to study or play as a result. In many cases, the only way in which the local authority will be able rationally to determine whether either of these tests is met is to carry out an assessment under the Working Together statutory guidance.

So many (most?) siblings of disabled children will be entitled to a child in need assessment in their own right to determine whether they are ‘in need’ and if so what if any services the local authority ought to provide to them. That decision will have to be taken rationally, reasonably and fairly and with all the relevant information considered, including of course the child’s own views. There is however no absolute right to support under section 17 of the Children Act 1989 – by contrast to the Chronically Sick and Disabled Persons Act 1970 which imposes the key duty to support disabled children.

The second route to additional support for siblings is the new set of rights given to young carers under section 94 of the Children and Families Act 2014. Section 94 inserts new sections 17ZA-17ZC (bear with me…) into the Children Act 1989. These create a new right to a ‘young carers’ needs assessment’ which has significant parallels with the parent carers’ needs assessment about which I have previously blogged.

To make sense of this new right (since April 2015) we first need to understand who is a ‘young carer’. The definition is very broad – it is a person under 18 who provides or intends to provide care for another person and is not doing so under a contract or as voluntary work.** This would clearly include a sibling who provides any level of care to a disabled child. It is also important to note that ‘care’ includes the provision of practical or emotional support (section 17ZB(5)). So any sibling who does any practical tasks for their disabled brother or sister or who provides them with any emotional support is a ‘young carer’.

The duty on local authorities is to ‘assess whether a young carer within their area has needs for support and, if so, what those needs are’ (section 17ZA(1)). The bar for when a local authority must carry out such an assessment is set very low – either the appearance of need for support or a request for an assessment from a young carer or a parent of a young carer is sufficient to trigger the duty to assess.

Importantly, section 17ZA(7) reads as follows: ‘A young carer’s needs assessment must include an assessment of whether it is appropriate for the young carer to provide, or continue to provide, care for the person in question, in the light of the young carer’s needs for support, other needs and wishes.’

This seems to me to be an absolutely central consideration. I am very uncomfortable about any assumption that a child should be providing care for another person. There is certainly no legal requirement on a sibling to provide care – although I recognise that the practical reality is that many siblings who provide care may feel they have little choice. Section 17ZA(7) should make sure that any child providing care is actively choosing to do so and is properly supported in the caring role.

There are a number of links between the young carers’ needs assessment and the child in need assessment of the disabled child. Firstly, these assessments can be combined if both children agree (section 17ZB(7)). 

Secondly, the point of a young carers’ needs assessment is to determine whether services should be provided to the young carer under section 17 of the Children Act 1989 – this presumably being a reference to the power under section 17(3) discussed above, although this still requires the services to safeguard or promote the disabled child’s welfare.

There is also a power for a young carers needs assessment of a sibling to be done at the same time as any other assessment of the sibling – which would include a child in need assessment (section 17ZB(6)). So it would seem to make sense to request a combined young carers assessment to look at the siblings care related needs and child in need assessment to look at wider needs. The local authority would need to have good reason to refuse a request to take this joined up approach.

Regulations have been made which expand on the young carers’ needs assessment duty. Regulation 2 sets out general requirements of the assessment process, starting with the principle that the assessment should be ‘appropriate and proportionate to the needs and circumstances of the young carer’. Regulation 3 mandates the training and expertise required of those carrying out assessments.

Regulation 4 is particularly important, because it sets out a startlingly long list of decisions the local authority must make at the conclusion of the assessment process. This includes determining ‘whether any of the young carer’s needs for support could be prevented by providing services to (i) the person cared for, or another member of the young carer’s family’ (Regulation 4(2)(e)). Further, regulation 4(2)(h) requires the decision to be taken at the conclusion of a young carer’s needs assessment as to whether the sibling is a child ‘in need’ themselves. Any lawful assessment will need to result in decisions in relation to all the matters specified in regulation 4, which must of course then be shared in writing with the sibling and their parent(s) (section 17ZA(10)). 

So the scheme under the Children Act 1989 (as amended) clearly provides for careful consideration by local authorities of the additional needs of siblings, particularly where they meet the low threshold to be treated as ‘young carers’. However even siblings who are not involved at all in the care of their disabled brother or sister may still have a right to assessment and may potentially receive services as a child ‘in need’. The Children Act therefore reflects the positive obligation in Article 8 of the European Convention on Human Rights to provide support to enable family life to continue for families with disabled children. Indeed in certain cases Article 8 and the relevant international conventions may create the duty to provide such support following an assessment.

I hope this review of a typically complex area of social welfare law is some help for families looking for additional support. Any comments welcome, including where people have tried to access support for siblings using either of these legal routes.

For support and advice generally for siblings of disabled children (and adults), check out the website for the excellent charity Sibs – and their Youngsibs website for siblings themselves.

* see Children Act 1989 section 17(10)(c) and (11) for the very broad definition of ‘disabled’.

** Children Act 1989 section 17ZA(3) and 17ZB(3). A local authority may choose to treat ‘professional’ child carers as young carers, see section 17ZB(4) – but I find it hard to imagine when it would exercise this power.

Mathieson v SSWP – another Supreme Court win for disability rights

I had the privilege to act for the Mathieson family in the Upper Tribunal and the Supreme Court. This blog post has been approved by Mr Mathieson and his solicitor, Mitchell Woolf at Scott-Moncrieff and Associates. This post is dedicated to Cameron’s memory as a little boy who has left a great legacy for other families with severely disabled children. 

The Supreme Court’s judgment yesterday in Mathieson is an example of the state running far behind the way society now responds to childhood disability.

The issue for the Supreme Court was whether the rule which suspends payment of Disability Living Allowance (DLA) to disabled children once they have been in hospital for 84 days breached the human rights of Cameron Mathieson. Cameron was a severely disabled boy (aged 3 at the time his DLA was suspended) who had both extremely complex needs and the most loving family a little boy could wish for. As the judgment records, the suspension of Cameron’s DLA had a very significant impact on the family’s finances – and indeed on Cameron himself, in that for example fewer family visits could be arranged to him in hospital once DLA was suspended.

The family challenged the suspension of Cameron’s DLA through a lengthy legal appeal. They lost in the First-Tier Tribunal, in the Upper Tribunal and in the Court of Appeal. Cameron sadly passed away during the Tribunal process but to their immense credit his parents continued the fight, in large part to benefit other families.

At each stage prior to the Supreme Court, the Tribunal or Court accepted the Secretary of State’s argument that allowing DLA to continue would be ‘double provision’, because all children’s disability-related needs are met for them in hospital by the NHS. However the Supreme Court comprehensively and unanimously rejected this argument.

The leading judgment by Lord Wilson shows full acceptance of the modern reality of paediatric care, being that families and NHS professionals are partners in the care of sick disabled children in hospital. Essential evidence was produced by the charities Contact a Family and The Children’s Trust to show that in almost every case the level of parental care stays the same or goes up when a disabled child is admitted to hospital. The Citizens Advice Bureau at Great Ormond Street Hospital gave stark evidence that if parents seek to leave their children at GOSH then hospital social workers are informed – because parents are required to attend hospital and ‘take an active part in [the child]’s medical management’.

Lord Wilson recorded that the government simply could not answer this evidence. At para 37 he stated: ‘…there is nothing before the court to indicate that…the Secretary of State has asked himself: are benefits nowadays overlapping to an extent which justifies the suspension of a child’s DLA following his 84th day in hospital?’.

So the Supreme Court found that the rule discriminated against Cameron contrary to Article 14 of the European Convention on Human Rights. Because the rule is set out only in secondary legislation (as opposed to an Act of Parliament) the Secretary of State acted unlawfully under section 6 of the Human Rights Act 1998 in following it and suspending Cameron’s benefits. The family will therefore be entitled to a back payment of the sums they should have received. All this is summarised much more elegantly by Lord Wilson in para 48 of his judgment.

What does this mean for other families? As Lord Wilson noted at para 49, ‘Decisions founded on human rights are essentially individual’. So while the rule remains, the question will need to be asked in every case where a disabled child has been in hospital for 84 days whether it would breach his or her human rights to suspend payment of his DLA. Where his or her family are continuing to provide a high level of care to the child it would seem that the answer to this must inevitably be yes and the benefit must continue. As Lord Wilson noted (also para 49), ‘the court’s decision will no doubt enable many other disabled children to establish an equal entitlement [to Cameron]’.

At present it will be necessary for other families to appeal to the First-Tier Tribunal to challenge any suspension decision made under the existing rule. Evidence will need to be presented to show that the family continue to be actively involved in the child’s care in hospital. However it is to be hoped that the Secretary of State will respond quickly and either scrap the rule or at least modify it significantly to take full account of the Supreme Court’s judgment so that such appeals become unnecessary.

This still however leaves other important questions unanswered. The most obvious is the position of 16 and 17 year olds, who are children for the purposes of national and international law but who are treated as adults under the benefit rules, so lose payment of their DLA after just 28 days in hospital. Equally, what about disabled young people over 18, whose families continue to provide them with significant support but who also lose their DLA after 28 days in hospital? It is likely that these questions will need to be answered through further litigation unless the Secretary of State does the right thing and scraps these rules entirely.

Any Supreme Court judgment has wider implications, and there are at least three I want to highlight from the judgment in Mathieson:

  1. The Justices have taken a very liberal approach to the vexed question of what constitutes a ‘status’ for the purpose of Article 14 ECHR. All five Justices concluded that Cameron has a relevant ‘status’ as a sick disabled child in hospital, as opposed to disabled child cared for at home – see eg Lord Wilson at paras 19-23. It is particularly helpful for future cases that Lord Wilson strongly suggests at para 23 that different levels of impairment can amount to a difference in ‘status’.
  2. Mathieson is the latest in a line of recent Supreme Court judgments, most notably in the Benefit Cap case, where the international human rights conventions have played a significant role. At para 41, Lord Wilson found that the Secretary of State was in breach of his international law obligation to treat disabled children’s best interests as a primary consideration – this obligation being imposed by Article 3(1) of the UN Convention on the Rights of the Child and Article 7(2) of the UN Convention on the Rights of Persons with Disabilities. This then assisted the court in finding a breach of Article 14 ECHR, because of the requirement to read the ECHR in harmony with the principles of international law (see Neulinger v Switzerland and Lord Wilson in Mathieson at para 44). There is therefore a growing trend in the Supreme Court (if not yet in the Court of Appeal) towards giving significant weight to relevant international instruments in deciding human rights cases.
  3. There is a significant run of cases which state that the appellate courts should defer to the expertise of specialist tribunals. Lord Wilson considered those cases in his judgment at paras 45-48; while accepting the principle, he held that the Upper Tribunal had made errors of law in its decision such that its decision did not need to be followed (by contrast to Obrey v Secretary of State for Work and Pensions).

One further issue did not get any consideration in the judgment, which is the relevance of the right to respect for family and private life contained in Article 8 ECHR to the decision to suspend payment of Cameron’s DLA. Because it was accepted by the Secretary of State that the decision fell within the scope of Article 1 of the First Protocol to the ECHR (the right to peaceful enjoyment of ‘possessions’, which includes state benefits), Lord Wilson did not find it necessary to consider the arguments addressed to Article 8. It may be that those arguments take on more significance in another case where (unlike DLA) the benefit is paid not to the child but the parent.

On a practical level, Cameron’s case is an excellent example of strategic litigation in action. The potential to challenge the 84 day rule through an appeal relying on the Human Rights Act was identified in discussions between the charities and lawyers. Cameron’s family received pro bono assistance from the estimable Mitchell Woolf at Scott-Moncrieff and Associates in the First-Tier Tribunal. Some exceptional legal aid funding was obtained in the Upper Tribunal and standard legal aid funded the appeal in the Court of Appeal and the Supreme Court. Throughout the appeal the charities gave fantastic support on social and mainstream media as part of their Stop The DLA Takeaway campaign. In my view Cameron’s case provides an excellent example of how litigation can form an important part of a wider campaign to bring about social change – and hopefully one that can be followed in other areas. The key message is that lawyers and campaigning charities need to work closely together from the outset.

All these implications will play out in future cases. At present we have a further example of the Supreme Court taking disabled people’s rights seriously and applying rigorous scrutiny to the state’s justification for its policies. We should all welcome the fact that we live in a society where the highest court is both willing and able to tackle injustice in state decision making such as that present in Cameron’s case. Given the direction of travel it is likely that a number of other such challenges relating to disabled people’s human rights will continue to come before the highest court.

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