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.

Tag: Health

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

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.

The difference #LBBill will make

I am re-posting here the post I wrote for Justice for LB, explaining why I think #LBBill is so important as part of the campaign for disability rights. I would be very grateful if everyone who agrees could take five minutes to contact their MP and ask them to support the Bill. It will take multiple contacts from campaign supporters to persuade MPs that this is an important issue.

It is such a thrill to see the map of the UK turning green as Justice for LB supporters contact their MPs to ask them to support #LBBill, the proposed new law to reinforce disabled people’s right to live in the community with choices equal to others.

Getting the Bill to this stage has involved the collective wisdom of a huge number of passionate and committed people. We have had input on the content of the Bill from disabled people’s organisations, individual disabled people, families, carers, friends and allies. The text of the second draft of the Bill is much improved from its first draft, with a stronger rights focus including implementation of the right to independent living in Article 19 of the UN Disability Convention.

There are some ideas in the bill that can be traced back to one individual, like Mark Neary’s original idea that all placements made by the state should be subject to approval, which is reflected in Clause 5. Others have emerged from the free-flowing discussion, debate and dialogue that has characterised the process so far.

We had hoped to have more time to debate Draft 2, it’s my fault we don’t, because I’d thought the ballot for private members’ bills was in July, whereas in fact it is on 4 June. This is the kind of mistake that would get a professional campaigner fired, but as we are all volunteers and no-one’s in charge I’ll probably get away with it. Apologies nonetheless.

So the key action now is to get as many MPs as possible informed about and supportive of the Bill, so that when we know the outcome of the ballot we have the best chance of getting a high-ranking MP to sponsor the Bill (see the #LBBill process post for a more detailed explanation of this).

One of the question supporters are likely to be asked by MPs and their staff is what difference would #LBBill make, and in particular, wasn’t this all dealt with last year in the Care Act 2014? The short answer to these questions is, a huge difference, and no. A more compelling answer to the difference question has been given by Sara Ryan in an amazing post as part of this Week 10 of #107days.

So I’ll take the lawyer’s question, which is why the Care Act isn’t enough.

I’ll be the first to agree that the Care Act is a step forward. The well-being duty in Section 1 has the potential to transform the approach to how social care is provided to disabled people. However, the Care Act is an act about social care, it says nothing about the NHS services that many disabled people need. It also falls far short of implementing a right to independent living.

In particular the Care Act doesn’t do any of these things which #LBBill would do:

  1. Require the state to ensure that all disabled people can live in their community, with choices equal to others and the support necessary to ensure their full inclusion and participation in the community (Clause 1)
  2. Expressly reject any idea of capping expenditure on care at home at the level of the cost of residential care (Clause 2). This is likely already to be unlawful but it is known that this practice goes on and it should be outlawed.
  3. Require the state to secure in every area a sufficient supply of community support, and to make sure disabled people are employed to plan and commission these services (Clause 3)
  4. Ensure that the most appropriate living arrangement is made for every disabled person who needs state help, which will generally be the arrangement they choose (Clause 4)
  5. Require appropriate approval of all living arrangements made by the state (Clause 5)
  6. Require reporting on all living arrangements made by the state, to create the disinfecting effect of sunlight which is so badly lacking at present (Clause 6)
  7. Make the Mental Capacity Act 2005 more respectful of the rights of disabled people and their carers, as a prelude to proper systemic reform of the MCA (Clause 7)
  8. Take people with learning disabilities and autism out of the scope of the civil sections of the Mental Health Act 1983 (Clause 8)
  9. Ensure the provision of appropriate community mental health services to people with autism and learning disabilities (Clause 9)
  10. Abolish the use of secret ‘panels’ and require disabled people and those around them to be properly involved in all decisions made about them (Clause 10)

So, none of #LBBill duplicates anything that is in the Care Act, or other existing legislation. It’s all new and it’s all what the community of #JusticeforLB supporters has said is needed if the law is to properly reflect and respect disabled people’s human rights.

With the government expected to announce today its intention to repeal the Human Rights Act and replace it with a British Bill of Rights, let’s get our politicians thinking about the rights disabled people and their families have said they want and need to be enshrined in law. Please keep pushing so that every MP knows about #LBBill and knows how much it matters in advance of the ballot.

Five legal priorities for disabled children and the new government

With the Conservatives winning a majority in last week’s General Election it would seem there is unlikely to be any radical change in law or policy affecting disabled children from the last Government. The focus must surely be delivery of the reforms introduced by the Children and Families Act 2014. With that in mind here are five suggestions for urgent action by the new Minister (most likely the old Minister, Edward Timpson MP) and his colleagues in Health:

  1. Extend the timeframe for transfer from statements and Learning Difficulty Assessments (LDAs) to Education, Health and Care Plans (EHC Plans). It was never going to be possible to transfer all children and young people with statements / LDAs over to EHC Plans by April 2018 unless the transfer process was going to be a sham. And in many areas that seems to be exactly what has happened – no proper transfer review, simply a rebadging of statements as Plans often led by the school with minimal Local Authority input. The Minister should now consult on a sensible extension of the timetable for transfer, predicated on every Local Authority ensuring that a proper transfer review takes place in every case, involving social care and health as required.
  2. Extend the timeframe for carrying out EHC assessments. I anticipate this one may be controversial – but it seems to me very difficult for a local authority to ensure that in every case a proper EHC assessment is carried out with input from social care and health and for the process to be completed within 20 weeks. In my view the Minister should consult widely on whether a slightly longer timeframe should be allowed, again with an absolute expectation that the assessment process will be carried out properly in every case. It seems to me that a proper assessment leading to a lawful Plan is more important than a quick assessment and ropey Plan – but I understand that families may think speed and quality are equally important.
  3. Sort out the confusion in relation to social care assessments. For disabled children who do not qualify for an EHC assessment, the key assessment duty remains section 17 of the Children Act 1989. However the courts have had to read the duty to assess into the Children Act, and there is nothing in section 17 which specifies the form or type of assessment required. Answers to questions like who has to carry out the assessment, what issues it must cover and the timescale are left to guidance, currently Working Together to Safeguard Children. However the High Court in R (L and P) v Warwickshire has held that not all disabled children are entitled to a social work assessment under Working Together. Yet Working Together gives no steer as to which children are entitled to a ‘full’ assessment, and which children can be assessed via ‘Early Help’. It would greatly assist if the Minister were to consult on guidance specific to disabled children which would clarify this critical point.
  4. Make the Local Offer real for social care. The Local Offer under section 30 of the Children and Families Act 2014 has the potential to create a baseline entitlement for all disabled children and families, but only if there are actually services available for families to access under it. One important step which could be taken by the Minister to help achieve this would be to issue guidance requiring every Local Authority to have a minimum short break entitlement with no or very minimal assessment and eligibility criteria. This would obviously be additional to the support available to children who hit eligibility criteria for support under the CSDPA 1970. Guidance currently describes this kind of offer of unassessed short breaks as good practice, but if it were to be mandatory then the Local Offer in social care would start to have some real value.
  5. Reissue the National Framework for Children and Young People’s Continuing Care. It is vital that disabled children with complex health needs get a package of care and support that is properly co-ordinated and centred on their needs in their family context. The National Framework is supposed to achieve this, but it is badly out of date and does not reflect the reforms introduced by the Health and Social Care Act 2012. For example, the Framework still refers to ‘Primary Care Trusts’ which have been abolished and replaced by Clinical Commissioning Groups. It also does not reflect the vital role of NHS England in commissioning packages of care for children with the most complex needs. The National Framework therefore needs to be reissued urgently, and when this is done its status must be clarified; CCGs and Local Authorities need to know whether they are expected to follow it or the question will be left to the courts to decide.

I am not suggesting that any of these measures, either individually or taken together, will lead to the kind of radical transformation in education, care and support that disabled children and their families need and deserve. However they seem to me to be the kind of practical steps that the Minister can take to help the system introduced last year work more effectively.

Comments on these ideas and other ideas for priority action most welcome below.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

#JusticeforLB

#JusticeforalltheDudes

Easier read – #LBBill – the first draft

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

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

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

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

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

We know the Bill must:

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

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

Here are 4 important things from the draft #LBBill:

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

What next?

These are the ideas in the first draft.

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

Then we can write a better draft.

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

Please show your support for #LBBill .

The LBBill blog has links to help you do this.

#JusticeforLB

#Justiceforallthedudes

Direct payments – don’t get fooled by personalisation

I’m sceptical about personalisation. The principle of disabled people and families having choice and control over care arrangements is unarguably right. However in practice I see personalisation delivering two bad things. Firstly, personalised approaches are used to transfer risk and responsibility for care from the state to disabled people and their carers. See the brilliantly titled paper by Prof Luke Clements, ‘Individual Budgets and irrational exuberance’. As Mark Neary put it yesterday in his alternative social care dictionary; ‘Personalisation – Phew, got rid of another annoying statutory duty.’ By way of example, people who use direct payments to employ their own Personal Assistants must make arrangements for tax, National Insurance contributions and statutory sick and maternity pay – as they become employers. Is that something most people would want to take on?

Secondly, personalisation is used as a cover for cuts. It seems to be far easier for local authorities to tell people their personal budget is being reduced by 20% than to tell them that the service they were receiving on five days a week is now only to be provided on four. It’s even easier to change the way your Resource Allocation System generates an ‘indicative’ budget (more on RASes below) to reduce this figure in a way that disabled people and families will struggle to understand. None of this is lawful if the service / funding is being provided in discharge of the CSDPA duty, because the CSPDA requires eligible needs to be met in full – but that doesn’t stop it happening across the country.

Saying all this though, I recognise that for some disabled people and families with disabled children the right to a direct payment has led to a massive improvement in their lives. Despite all the rhetoric of personal budgets, to my mind it is direct payments which still matter – they are the mechanism by which money actually moves from the state to disabled people and families. In the best areas, direct payments have killed the culture of the one-size-fits-all service which previously existed and led to real innovation in the services available to disabled children and adults. In the best areas.

Personalisation is often seen as a law-free zone. In Control once published a paper with the (in my view) shocking title ‘Don’t be fooled by the law. However unsurprisingly the allocation of state resources to individuals through direct payments is in fact covered by a significant amount of law and guidance. I’ve already written about the new SEN direct payments under the Children and Families Act 2014. The problem with these is that, in short, the local authority is not allowed to make an SEN direct payment if to do so would lead to additional costs. In health, there is a new right to a personal health budget from 1 October 2014 for children and adults who are eligible for NHS continuing healthcare – but as far as I can tell it is up to the NHS in every case whether to make a direct payment. See para 7.2 of this guidance on the right to have a personal health budget which suggests health direct payments can be refused if they are ‘impracticable or inappropriate’. The detailed guidance on health direct payments confirms that health direct payments can be made when they are appropriate for the individual and represent value for money – but this does not mean that in any case they must be made.

So the right to a direct payment is most real in social care – and works in essentially the same way for disabled children and disabled adults. Links to the law follow – with the usual health warning that some may not have been updated with relevant amendments. The links should at least give the basic statutory scheme.

The key statutory provision (until next April at least when the Care Act 2014 comes into force for disabled adults) is section 57 of the Health and Social Care Act 2001, which requires that direct payments must meet the ‘reasonable cost of securing’ the necessary service. The duty to make direct payments when services are being provided to disabled children stems from section 17A of the Children Act 1989. Adults who lack capacity in relation to relevant decisions about direct payments now have a right to them under section 146 of the Health and Social Care Act 2008.

Under the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009, social care direct payments essentially must be offered in any case where the disabled person or family is capable of managing them, either alone or with available help. The way in which social care direct payments should operate is governed by statutory guidance with the snappy title Guidance on direct payments for community care, services for carers and children’s services: England 2009.

From this statutory scheme we can construct some answers to questions that might arise where local authorities neglect the fact that the right to direct payments is carefully defined in law. Here are some of the questions that I have been hearing recently about direct payments, and my general answers – although of course, any individual case needs careful fact-specific advice:

  1. Do I have to accept a direct payment? No. Direct payments are a right in social care (absent exceptional circumstances) but they are also a choice. If the disabled person or family don’t want to deal with a direct payment, they are entitled to say that they would prefer a service to be provided to meet the eligible needs. Of course, they will then need to negotiate with the local authority as to what service is to be offered – and providing it meets the need, the local authority is not obliged to fund a more expensive service when a cheaper one is available. However no disabled person or family should ever be forced to accept a direct payment. See the guidance at para 15; ‘A person does not have to accept direct payments; if they wish, they can choose instead to receive services that are provided or arranged by the
    council.’ The guidance emphasises the need for support services and advocacy so that the choice as to whether to have a direct payment is a fair one in every case.
  2. How should the amount of direct payment be set? Direct payments should be set in each case at the amount that the local authority considers will meet the reasonable cost of securing the necessary services for that person. That assessment by the local authority has to be informed by the evidence, including the assessment and the service plan, setting out what services the authority considers would be sufficient to meet the eligible needs. In order to comply with the statutory duty the local authority has to assess the disabled person’s needs, determine which are eligible for support, decide which services would be sufficient to meet those needs and then work out what that package of services would cost. That is the sum of money which should be offered as a direct payment – although of course what the disabled person or family choose to buy with that money is (within reason) up to them (see below). See the guidance at para 111 onwards for more detail about how the amount of direct payments should be set. Importantly the guidance emphasises at para 114 that ‘councils should include associated costs that are necessarily incurred in securing provision, without which the service could not be provided or could not lawfully be provided’ – for example recruitment costs, National Insurance or VAT. If you’re going to take on the state’s employment responsibilities it’s reassuring to know the state is obliged to fund them.
  3. Can a local authority have a fixed direct payment rate with no exceptions? No. Local authorities can’t ever operate blanket policies (unless the policy just reflects a legal rule) – they must always at least consider exceptional cases. However here we have a clear statutory duty which states that the amount of direct payment must mirror the cost of services to meet the individual disabled person’s needs. So a local authority could not have a fixed hourly rate of (say) 9.50 per hour for a carer – because some disabled people may need a more specialist service with greater cost. In my view it is doubtful whether even a typical rate with more allowed in exceptional cases is lawful, because this may not allow the case-specific focus which the law requires.
  4. Can a local authority use its RAS to determine the amount of money offered as a direct payment? No. Prior to the Supreme Court’s judgment in KM v Cambridgeshire CC, in my experience local authorities were routinely using their Resource Allocation Scheme (RAS) to determine the amount to be paid by way of a direct payment in any particular case. A RAS, put shortly, is a mechanism by which needs can be translated into sums of money using the rough cost of meeting similar needs in the area. What this skips out is the essential step of working how much it would cost to provide services to meet the particular needs of the individual disabled person. This is why the Supreme Court in KM made clear that RASes can only be used to create a ‘starting point’ or ‘ballpark figure’ – more formally, an ‘indicative allocation’ at the start of the process. So the RAS could generate a sum of say 120.00 – but the essential next step is to develop a support plan to see how much it will actually cost to meet the disabled person’s needs and then (inevitably) increase the sum allocated to comply with the legal duty. See a detailed critique of the use of RASes by Prof Luke Clements and Lucy Series for more reasons why their use is problematic – but confined to the role prescribed by the Supreme Court in KM their use is lawful.
  5. Can a local authority refuse to allow direct payments to be spent on anything other than personal assistants? No. The whole point of direct payments is to allow flexibility in the way in which care is provided and arranged. As the statutory guidance says ‘a direct payment gives the service user flexibility to look beyond ‘off-the-peg’ service solutions at options that may include employment, education and leisure activities as well as personal assistance to meet their assessed needs.’ It is totally unacceptable in 2014, when direct payments have been around since 1996, that local authorities still seem to be asserting unlawful limits on direct payment expenditure. See also para 14 of the guidance; ‘Direct payments do not have to be used in the same way as if support was being provided directly by the council. Indeed, they are intended to give the individual the maximum degree of choice and control over how their eligible
    needs are met.’ Finally see para 90; ‘In discussions with individuals about how their needs might be met through
    direct payments, councils should be prepared to be open to new ideas and be as flexible as possible’ and para 92, ‘Conditions [on the use of direct payments] should be proportionate and no more extensive, in terms or number, than is reasonably necessary.’ So why are these rigid rules about what direct payments can be spent on still in place?
  6. Does a direct payment have to be enough to cover things like transport and activity costs? Generally, yes. To repeat – the amount of direct payment should meet the reasonable cost of securing the necessary service to meet the disabled person’s needs. So if the service is intended to meet a disabled person’s needs in relation to social isolation, the ‘necessary cost’ of securing this service will include the cost of getting there and the cost of securing admission. Both transport and activity costs are covered by the CSDPA duty and so must be met where this is necessary to meet the person’s needs. The guidance helpfully emphasises that ‘Some people might use their direct payments to facilitate better social inclusion, others to aid their general well-being, for example through fitness classes or arts and cultural activities.’ The only situation where a direct payment need not cover these costs is if the local authority can reasonably conclude that it is not necessary for it to provide these services because they can be met another way. However that would need to be a rational decision based on the evidence in a particular case. For example, a blanket policy that transport costs will not be met via a direct payment because they can be paid for through state benefits will be unlawful.
  7. Can the local authority refuse to allow direct payments to be spent on a particular service on grounds of risk? Yes – but only if there has been careful assessment in the individual case. As the guidance emphasises at para 97; ‘Support planning involves allowing people to make their own informed decisions – including decisions about risk. Councils have a responsibility to ensure that, wherever possible, the choices made by the individual are respected and supported. The benefits of increased autonomy and social inclusion may have to be weighed against the risks associated with particular choices.’ This reflects the requirement to respect disabled people’s rights to private life, dignity and autonomy under Article 8 ECHR.
  8. Does there still need to be a care plan when support is being provided via a direct payment? Yes. See the guidance at para 98; ‘Councils are reminded that there should always be a care plan, a written copy of which should be given to the individual. This advice applies equally where people direct their own support or where the council directly
    provides or arranges services.’ There is an obvious reason why this is so important – if there is not a written plan setting out which services the local authority considers necessary to meet the person’s needs, how can anyone tell whether the amount of the direct payment is sufficient?

I hope this myth-busting exercise is some help. If personalisation is going to have benefits for disabled people and families as a policy approach it needs to be operated in accordance with the law. Disabled people and families must not get fooled by personalisation. Whether eligible needs are met through services or money the law requires that they are met properly and in full.

Please post any comments and general questions about the law on direct payments below and I will address those which are not case specific. For case specific issues I suggest contacting a specialist solicitor. While low level disputes around direct payments should be resolved through the local authority complaints process, serious disputes may require an application for judicial review.

Solicitors with expertise in disability and SEN cases

I am often asked to recommend solicitors for SEN and disability cases. The following is a list of solicitors’ firms with whom I’ve worked and who I know have good expertise in SEN and disability issues. All these firms offer legal aid and will be able to advise disabled people and families about eligibility for public funding. All can help with judicial review cases and most advise and represent people in the First-tier Tribunal (education appeals) and the Court of Protection (Mental Capacity Act cases). However not every firm does every type of case. If in doubt, check the website or call the new enquiries number for the firm to ask.

I am not formally recommending these firms – because I can’t, I only know their work from my perspective as a barrister at the other end of the telescope from the client. However from what I know, I would be confident that all these firms will offer a good quality service from staff who are committed to disability rights. The best recommendations will come from disabled people and families who have used solicitors as clients – so ask around if you are in need of legal advice.

Some of these firms have offices around the country, others have just one office. Where the firm has a particular regional focus I have noted this. However geographical location isn’t as important as the right expertise, particularly as so much work is done online these days. You should be able to find out about each firm from their website, including any restrictions on the areas they serve.

If a firm isn’t on this list, it may be that I simply haven’t had the chance to work with them yet. Please post any recommendations for further firms in the comments section below.

Final point – the list is in alphabetical order to avoid any accusations of favouritism by the firms I work with!

Solicitors with expertise in SEN and disability cases (as at 13 September 2014)

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