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: Judicial Review

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)).

Advertisements

New case law updates on disabled children’s rights

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

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

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

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

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

Safer homes for disabled children – crowdfunding cases for disabled children’s rights

Disabled children need safe and suitable homes – but with the housing crisis in parts of the country it is unsurprising that many disabled children have neither. The families of two disabled children (M and A) are challenging Islington council for failing to provide them with accommodation where they will be safe from falling and have sufficient space to meet their needs.

The challenge failed in the High Court. In particular the Judge held that the duty to co-operate between housing and children’s services in section 27 of the Children Act 1989 did not apply to ‘unitary’ authorities, for example London councils. Secondly the Judge held that the failure to put in place a child in need plan for M or A was not unlawful – despite the clear terms of the statutory guidance requiring such plans. Both these findings may reduce the protection of the Children Act scheme for disabled children if left unchallenged.

To their credit M and A’s families are willing to carry on the fight to the Court of Appeal. The issues their cases raise are obviously of very wide importance, potentially affecting thousands of families with disabled children. As such their legal team has worked with the organisation Crowdjustice to see if money can be raised from the community. The initial target is 3,000 pounds, which will allow the appeal to proceed to the next stage.

In my view the attempt to crowdfund M and A’s appeal is hugely significant. If it works in this case it can work in other cases – and be an answer in the right cases to the problems caused by the restrictions on legal aid.

Please consider supporting this important appeal by donating through Crowdjustice Please also spread the link throughout your networks.

For information on disabled children’s rights to housing see chapter 7 of the second edition of Disabled Children: A Legal Handbook. The section of this chapter in relation to accessing suitable housing for disabled children and families was written by M and A’s solicitor Rebekah Carrier.

Disclaimer – I work closely with the legal team for M and A. However I am not instructed on this particular case.

Disabled Children: A Legal Handbook – second edition now available

I’m thrilled / relieved to say that the second edition of Disabled Children: A Legal Handbook is now available online.

Legal Action Group published the first edition in 2010. It is astonishing how much of the text has had to be rewritten some five years later. We have had a wholly new SEN scheme under the Children and Families Act 2014, major changes to social care for disabled young people and those in transition to adulthood under the Care Act 2014 and a massive reorganisation of the health service under the Health and Social Care Act 2012. All this change has basically made the first edition a museum piece.

As well as covering these headline Acts and the relevant regulations and guidance as best we can, we also have some fantastic new content for the second edition. Camilla Parker has produced the definitive guide to decision making and issues in relation to capacity and competence. Polly Sweeney has given us an incredibly useful resource by way of a chapter on all the forms of remedies available to disabled children, young people and families (as well as updating the Education chapter). Rebekah Carrier led on major improvements to the Housing chapter, including new content on how to help make sure families get a home which is suitable for their needs.

We also had the benefit of excellent input from Martha Spurrier who updated the Health chapter and Louise Price who updated the Equality and Non-Discrimination chapter.

The co-authors remain myself, Prof Luke Clements and Dr Janet Read. If (when) people discover we’ve got anything wrong, it’s our fault.

The law affecting disabled children, young people and families is excessively and unnecessarily complex. The complexity has been made worse by the new legislation, which sits on top of old law dating back at least until 1970. We have done our best to make the book as accessible as possible while accurately stating the law. We hope the extensive cross-referencing will help non-lawyers find their way around the text.

As with the first edition, all the chapters of the book will again be published online free of charge by the Council for Disabled Children – I’ll confirm when the downloads are available. I hope anyone who would print the whole thing out would consider buying the book instead (!)

Above all, I hope the book continues to make a contribution to ensuring that disabled children, young people and families get the services and support to which they are entitled by law.

Final thought – as I tweeted earlier, we are very proud to have part of the Justice Quilt on the cover (see image above). I hope anyone who buys the book will also sign up to show their support for the Justice for LB campaign as they continue to struggle to get justice from the system.

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.

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

Easier read – Getting away with ignoring disabled people’s rights

This is an Easier Read version of my latest blog post on Impunity’ in relation to breaches of disabled people’s rights. Thanks as always go to Anne Collis at Barod.

There’s a law that says that local councils must go to court if they want to take away someone’s freedom to get up and leave a place.

Andy McNicoll did some work for Community Care magazine.

He found that over 50 councils hadn’t gone to court in any of these cases.

But those 50 councils knew of over 6,000 cases when they might be taking away someone’s freedom.

That means over 6,000 times that someone’s rights are being taken away – and there are many more cases.

So what’s going to be done about it?

I don’t know if anyone will do anything about it.

The British Institute for Human Rights is sending tweets about how human rights make a difference to disabled people and elderly people.

Elderly people in a care home were being trapped in special chairs that stopped them getting up.

This wasn’t just bad care. This was against their human rights. It broke the law.

Someone who knew about human rights went into the care home. He talked to the staff.

The staff have stopped using the special chairs.

I am glad that this has stopped.

But that is not good enough.

The care home broke the law. They shouldn’t get away with it.

International human rights law talks about impunity.

This means someone can get away with breaking the law, and you can’t do anything about it.

It seems to me that this is what is happening in the UK.

Disabled people have legal rights.

If someone takes away your legal rights, you can go to court and the judge will make sure you get your legal rights.

But in day to day life, this is not happening.

This is why:

  • You need to know you have legal rights
  • You need to know someone has taken away your legal rights
  • You need to know you can go to court
  • You need the energy to take your case to court
  • You need a specialist solicitor
  • You need to get legal aid, or find another way to pay a solicitor to help you go to court.

So in day to day life, it feels like councils and services can take away people’s legal rights and there’s nothing you can do about it.

What happens if you do take a case?

You get an apology. You may get a small offer of compensation.

But does that really change things?

Does it make sure no-one else gets their legal rights taken away?

What else can you do?

  • You can go to the Ombudsman.
  • You can go to an inspection body.
  • You can ask the Secretary of State to do something

Will any of those make a difference for you or for other people who are having their legal rights taken away?

When we drafted #LBBill, we had to think hard about this.

Everyone wanted a new law

But many people assumed that the law will be ignored, unless the law includes serious punishment for breaking it.

What punishments might work?

  • Fining people
  • Managers losing their jobs
  • Closing down a service?

I don’t know.

I do know that something called a judicial review can work. You can still get legal aid for a judicial review.

We need to stop letting people get away with breaking the law.

We need to take our cases to court more often.

We must never keep quiet because “everyone does it”. We must always speak out.

If enough people take their cases to court, maybe local councils and services will realise they must obey the law.

What’s the consequence? Impunity and breaches of disabled people’s fundamental rights

Two stories on social media this week reveal further systemic breaches of disabled and elderly people’s fundamental rights. Firstly, some excellent work by Andy McNicoll for Community Care shows widespread failure by local authorities to make the necessary court applications to authorise deprivations of liberty for disabled people living in the community. To me the most shocking aspect of Andy’s research was that at the relevant time there were over 50 councils who had made *zero* applications, despite those councils having identified over 6,000 cases where an application might be needed. It would seem that in all those 6,000 cases (and many others elsewhere) there is likely to have been a breach of Article 5 ECHR, the right to liberty.

The reasons for this sorry state of affairs have been expertly explored by Lucy Series – as Lucy writes the fundamental error was to exclude supported living placements from the scheme set up to deal with the consequence of the Bournewood judgment (HL v UK).

However what I’m interested in here is the consequences, not the cause, of this systemic violation of disabled people’s human rights. When I tweeted about the research yesterday a shocked social worker asked ‘how is that being followed up?’. And my answer was – I doubt it will be. Will the Secretary of State, the Care Quality Commission or any other official body do anything about this evidence? We shall see.

Similar thoughts came to mind this morning when the British Institute for Human Rights tweeted another of their case studies showing the practical difference human rights can make to the care and treatment of disabled and elderly people. This case study involved a challenge to a practice in a nursing home whereby:

several residents were effectively trapped in special ‘tilt-back’ chairs. The chairs were being used because they stopped people in the home from trying to get up, falling and hurting themselves.

Sadly, this meant many older people who could walk weren’t able to get up and out of the chairs. Instead they had to wait for staff to come and get them out of the chairs so they could go to the toilet or go and get something to eat.

Although I see cases like this every week if not every day, I was still shocked by this one. To me this isn’t just an example of poor practice, it is a blatant breach of those residents’ fundamental rights. Not simply the qualified right to respect for private life found in Article 8 ECHR, but also at least arguably the absolute rights to liberty and freedom from inhuman and degrading treatment found in Articles 5 and 3 ECHR.

BIHR report that through the intervention of a consultant who raised human rights concerns this practice was stopped; ‘Residents who could walk were no longer placed in the tilt back chairs and staff encouraged them to start using their walking skills again’. While this is obviously welcome, it begs the question – where is the remedy for those residents who suffered this practice for an unspecified period prior to the consultant’s intervention?

‘Impunity’ is an important concept in international human rights law. It refers to the impossibility, de jure (in law) or de facto (in fact) of bringing the perpetrators of human rights violations to account. The Council of Europe guidelines state that ‘Impunity arises where those responsible for acts that amount to serious human rights violations are not brought to account’.*

There is no question that we have impunity in law in this country in relation to disability rights. We have a legal framework which protects disabled people’s fundamental rights, albeit one that is patchy and imperfect. Cases such as Neary or ZH show that the courts are both willing and able to provide remedies in cases which come before them.

The real question is whether we have de facto impunity. Surely the test for this must be whether in the majority of cases where an obvious human rights violation takes place there is a clear and meaningful consequence, including a remedy for those affected. Will that test be met in relation to the 6,000 disabled people who experienced unauthorised deprivations of liberty in those 50 councils – or in relation to the elderly residents of the care home previously ‘trapped’ in their chairs? I have my doubts.

The barriers to a legal remedy in these cases are significant. First of all someone has to be motivated to bring a legal challenge – whether the person themselves, a friend, advocate or family member. They then need access to a specialist solicitor. Legal aid will have to be obtained (ever more difficult) or another way of funding the challenge identified. Do these barriers make it ‘impossible’ to get redress for a rights violation? In some cases, perhaps they do – and in all cases they make it extremely difficult.

Even if those hurdles are surmounted there is a very good chance that the claim will settle with perhaps an apology and a modest offer of compensation. Is this really an effective remedy from the perspective of both the person and the public interest?

Other routes to redress of course exist. Complaints can be made to Ombudsmen. Inspection bodies can inspect and take action. The Secretary of State and his officials can intervene. But will any of these make a difference in these and other similar cases?

One of the most difficult issues raised by disabled people and family members in the debate on the drafting of #LBBill was that of sanctions and accountability. While everyone recognised that getting the legal framework right mattered, many people simply assumed that it would often be ignored unless there were serious consequences.

So what are the options? Fining providers and public authorities? Managers and staff losing their jobs? Closing down or removing people from provision which fails to respect human rights (this is of course already done in the worst cases)?

I don’t know the answer. I do know however that where breaches are ongoing judicial review can be a real and effective remedy – and legal aid is at least still available in this area, subject to a means test.

So it seems to me that if we want to end de facto impunity in relation to breaches of disabled and elderly people’s human rights we need to take a much harder approach than we often see at present, with more frequent recourse to legal challenges (I know – lawyer in ‘use the law more’ shocker).

Just because practice is all pervasive in a setting or an area doesn’t make it right. If unlawful practice and rights abuses don’t stop the moment they are identified, is there a better option than immediate recourse to court? What other options do we have to avoid a situation of de facto impunity here in the UK when disabled and elderly people’s rights are violated?

*The Council of Europe’s guidelines define ‘serious human rights violations’ as ‘those acts in respect of which states have an obligation under the Convention, and in the light of the Court’s case law, to enact criminal law provisions’. This suggests that unless the treatment of disabled or elderly people constituted criminal conduct then violation of their rights without remedy would not constitute impunity – a principle I would challenge.

Disabled people’s legal rights if we can’t #SaveILF

Although the Independent Living Fund operates in Scotland and Wales, the post is focussed on the transfer to Local Authority support in England.

The government has decided to close the Independent Living Fund (ILF) with effect from 30 June 2015. The description of the ILF on the gov.uk website (link above) is that the ILF ‘delivers financial support to disabled people so they can choose to live in their communities rather than in residential care’. The contradiction between closing the ILF and the aims of the No Right Ignored green paper is stark and obvious. The sum being transferred to local authorities is less than the current funding through the ILF and is not ringfenced.

Disabled people and organisations are campaigning under the #SaveILF banner to try to reverse the closure decision. The first judicial review challenge to the closure decision succeeded in the Court of Appeal. The second judicial review challenge failed after the government re-made the closure decision. This is a rare example of a fundamental weakness with judicial review – that a challenge to the process which succeeds may just result in the decision being taken again lawfully. The most recent legal step in the campaign was a complaint to the UN Disability Committee launched last week by two disabled women.

It goes without saying that I strongly agree with all those challenging the closure decision. The ILF has been closed to new applicants since June 2010 and doesn’t support anywhere near enough people – but you deal with the unfairness this creates by providing better community support for all disabled people, not by taking away vital funding from those whose lives have been fundamentally changed for the better by the ILF. The numbers involved are also significant – the ILF currently supports around 18,000 people. How realistic is it to expect that local authorities will manage well the transfer of responsibility for this group of severely disabled people at a time of deep cuts to their budgets across the board?

However there has been no clear promise that I have seen from any of the major parties to reverse the ILF closure decision after the May election. It seems that only Caroline Lucas for the Greens has expressly supported retaining the ILF. Hope that Labour would reverse the closure decision if in government after the election appears to have been dashed. I hope this changes – but given the Fund closes at the end of June we can’t afford to wait to work out what happens next if (as seems highly likely) the closure decision stands.

The headline message is that the responsibility for providing support for disabled people who have received ILF funding will transfer solely to Local Authorities. My view is that the law is likely to require in most cases that a very similar level of support is provided after transfer – although that may well not be what happens in practice without challenge from disabled people, advocates and friends, families and allies. In particular it will be unlawful if the closure of the ILF results in disabled people being forced into residential care. I’ll explain my thinking on this below – but first we need to look at what the official guidance says on the ILF closure process.

The starting point is the statutory guidance issued under the Care Act 2014, as it will be unlawful for Local Authorities not to follow this guidance in the absence of a considered decision not to do so. There is also non-statutory guidance on the ILF transfer programme issued by the Fund in April 2014 and aimed at current ILF recipients. This guidance describes a six stage transfer process which should be followed.

The Care Act guidance deals with issues relating to ILF closure in chapter 23 on ‘Transition to the new legal framework’. The section on the ILF starts at para 23.26. In the second paragraph (23.27) the guidance states ‘Local authorities will have to meet all former ILF users’ eligible needs from 1 July 2015. Funding in respect of former ILF users will be distributed to local authorities on the basis of local patterns of expenditure following transfer, to allow them to meet users’ care and support needs’ (emphasis added).

It is therefore essential that there is a proper determination of which needs are ‘eligible’ before the ILF closes for every current ILF recipient. As the guidance states at 23.28, ‘Local authorities will need to plan for the transfer of adults currently receiving ILF payments to ensure that their care and support continues and is not interrupted during this period’.

To do this Local Authorities will have to complete an assessment under the Care Act and apply the new national eligibility criteria to determine which needs are eligible for support.  As I have blogged previously, I think that the new national eligibility criteria are more generous that the current ‘substantial’ band. Importantly the outcomes which can make a person ‘eligible’ include:

  • Being able to make use of the home safely
  • Maintaining a habitable home environment
  • Developing and maintaining family or other personal relationships
  • Accessing and engaging in work, training, education or volunteering
  • Making use of necessary facilities or services in the local community
  • Carrying out caring responsibilities for a child

These are the kind of independent living outcomes which the ILF has previously funded.

The duty under section 18 of the Care Act 2014 is to ‘meet needs’, not provide a particular service. This raises the possibility that a Local Authority would purport to meet a person’s needs by a means which does not promote an independent life for them – at its most stark by offering only a package of residential support in a care home on grounds of cost. We know some local authorities are already operating ‘maximum expenditure policies’ where the cost of care at home is capped at the level of the cost of a care home placement for that person.

Para 10.27 of the guidance is of great importance in cases like this:

In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value. (emphasis added)

This final sentence is obviously key. Needs should be met in the way which delivers the desired outcomes for the best value. None of this will be achieved by forcing a disabled person into a care home or other residential accommodation against their will. This is reinforced by a later paragraph of the guidance, para 11.7:

At all times, the wishes of the person must be considered and respected. For example, the personal budget should not assume that people are forced to accept specific care options, such as moving into care homes, against their will because this is perceived to be the cheapest option. (emphasis added)

So in addition to this clear message in the Care Act guidance, what are the ‘related public law duties’ that local authorities will have to comply with when someone transfers from ILF support? As well as the general requirement to act rationally, reasonably and fairly, one of the central requirements will be to respect the person’s human rights. This includes the ECHR rights directly incorporated into English law by the Human Rights Act 1998, most notably Article 3 concerning freedom from inhuman and degrading treatment and Article 8, which mandates respect for the individual’s family and private life and their home. Article 5 ECHR is also important, as it protects a person’s liberty which may be deprived if they are placed in a care home against their will. These rights bring with them ‘positive obligations’ on the state to take steps to avoid them being breached.

However the recent Supreme Court judgment in the Benefit Cap case (R (SG) v Secretary of State for Work and Pensions) makes clear that in interpreting the ECHR rights incorporated by the Human Rights Act 1998 the rights under the other human rights conventions may also be highly relevant (blog post on what the Benefit Cap judgment means for international human rights in English law to follow). The most obviously relevant right in the UN Convention on the Rights of Persons with Disabilities (CRPD) in ILF transfer cases will be Article 19, headed ‘Living independently and being included in the community’. The essence of Article 19 is that disabled people should be able to choose where they live on an equal basis to others, not to be forced into particular living arrangements (this is also the principle behind the #LBBill being promoted by the Justice for LB campaign). So any decision taken by a local authority which requires a former recipient of ILF funding to live in a place or in a way which is different than they would choose may well breach Article 19 of the CRPD, read with Article 8 ECHR.

Would such a decision breach the Care Act itself? Possibly, depending on how the courts interpret the well-being duty in section 1. This duty states that in carrying out their Care Act functions in an individual case the local authority must ‘promote that individual’s well-being’. ‘Well-being’ is then defined in a lengthy list of factors, including ‘personal dignity’ and ‘control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided)’.

It may well be that the courts hold that forcing a person into residential care against their will breaches the well-being duty. However notably absent from the list in section 1(2) is the principle of choice which is so central to the Article 19 CRPD obligation. This is why there must be some degree of caution about the optimistic words of the Care Act guidance at paras 1.18-1.19; ‘Although not mentioned specifically in the way that “wellbeing” is defined, the concept of “independent living” is a core part of the wellbeing principle…The wellbeing principle is intended to cover the key components of independent living, as expressed in the UN Convention on the Rights of People with Disabilities (in particular, Article 19 of the Convention)’. However the guidance should be read at face value until a court expresses a different view.

The link between the well-being duty and the ILF transfer process is expressly made in the Care Act guidance at 23.29. However the guidance also makes clear not only that resources are generally relevant to local authority decisions (see para 10.27 cited above), but also that direct payments may not be made ‘where the costs of an alternate provider arranged via a direct payment would be more than the local authority would be able to arrange the same support for, whilst achieving the same outcomes for the individual’ (para 11.26). We may well therefore need the full force of the human rights obligations to stop disabled people’s right to independent living being undermined by the ILF closure.

The Care Act guidance describes a ‘Transfer Review and Support Programme’ being run by the ILF to assist users to transfer to local authority support. This should involve a face-to-face meeting with an ILF assessor and a local authority representative. However this cannot take the place of a full assessment by the local authority and a determination of eligible needs under the Care Act eligibility regulations. This is plainly required given that the closure of the ILF will be a highly relevant change of circumstance for those who currently benefit from it.

I hope that everything I have written above will become entirely irrelevant because the next government will heed the call to reverse the ILF closure decision. If it doesn’t, given the overall pressures on local authority budgets it seems likely that many post-ILF cases will be fought out between disabled people and their local authorities, including in the courts. This does not seem to be the most auspicious of likely starts for the new Care Act era.

The need to save ILF has been highlighted powerfully recently by Tom Shakespeare on Radio 4’s A Point of ViewThe Independent Living Strategy group – a group of disabled people and allies from a range of organisations concerned about independent living – are about to launch a survey about people’s experiences of independent living and specifically the ILF transfer. This film by Kate Belgrave and Ros Wynne-Jones shows disabled people making the case for why ILF should be retained. As Daphne Branchflower states in the film, ‘everyone…deserves to be able to reach their full potential. The ILF definitely helped me to reach my full potential’. Will we be able to say the same about the Care Act in five or ten years time?

I hope this post is some help for disabled people and their allies who are planning for the transfer from ILF to local authority only support from 1 July 2015. We must not let the dire (and understandable) predictions that local authorities will breach disabled people’s human rights after ILF transfer come to pass. Comments on how the process is working and any observations on these legal issues most welcome below.

#SaveILF

Human trouble – #LBBill, disability rights and the law

There was a brilliant event last night up in Manchester to open the Human Trouble series of events at Manchester Met (the rest of the series looks great, check it out). Thanks to Drs Lucy Burke and Katherine Runswick-Cole for making it happen. After an afternoon of debate and discussion about the first draft of #LBBill, the evening was a #JusticeforLB get-together – both a celebration of progress and a marker of how far we have to go. Sara spoke about Connor and showed the film that was played at his funeral which left us all in bits. George outlined the campaign to get justice for LB and how the bad things that happen to disabled people are human rights violations, plain and simple. Mark told the story about how Steven was taken away for ‘respite’ and not allowed to come home, which never ceases to shock me in its basic lack of humanity, and explained how the idea for #LBBill emerged. And I ended up by saying something like this, about the law as it is and the law as it might be.

If you haven’t yet done so, please pledge your support for #LBBill. The text below is a cleaned up and slightly expanded version of what I said last night, with added links.

The trouble with adult social care law is that we constantly lose sight of the human.

For some time it seemed that lawyers and judges thought that the point of adult social care legislation was to ensure that people were kept safe – although of course our institutions have manifestly failed to do even this.

But we are told that we are at the beginnings of cultural change. The Care Act places human dignity at the centre of the duty to promote well-being that will start the new legal scheme for adult social care, in force from 1 April. The most liberal judges are getting it too:

  • First Lord Justice Munby highlighted that all life involves risk, and asked the question, ‘What good is it making someone safer if it merely makes them miserable?’[1]
  • Then Baroness Hale stated simply that ‘a gilded cage is still a cage’ – this in the most important case for disability equality yet heard in this country, the Cheshire West case in which disabled people’s right to liberty was finally held to be equal to everyone else’s.

In fact the courts are getting better generally (not by any means universally) on disability rights – we’ve not only had the ringing victory in the Supreme Court in Cheshire West, but two other Court of Appeal cases – Bracking and Burnip – where policies which would damage or were damaging the rights of disabled people were overturned.

Burnip saw the Court of Appeal hold that the housing benefit regulations indirectly discriminated against disabled people who needed additional space in their homes because they could not share a bedroom. Perhaps the most important aspect of this case was the willingness of the Judges to consider the UN Convention on the Rights of Persons with Disabilities, which was said by Lord Justice Maurice Kay to have ‘the potential to illuminate our approach to both discrimination and justification’. This is the same rights-based approach which was adopted by the Supreme Court in Cheshire West.

Bracking was the successful first round challenge to the decision to close the Independent Living Fund. This audience will know that the ILF provides vital support to help disabled people live independently in the community – precisely the same aim as the #LBBill. The first time round the challenge to the closure decision succeeded on appeal because the Minister had not complied with the public sector equality duty (section 149 of the Equality Act 2010) when it was taken. Astonishingly, the majority of the Judges in the Court of Appeal in Bracking held that the Minister did not understand what the (devastating) impact would be of closing the Fund on the disabled people who benefit from it when the closure decision was taken. Nor did the Minister have specific regard to the specified needs in section 149, for example the need to advance equality of opportunity, this first time that the closure decision was taken.

The European Court of Human Rights is also getting its act together on disability cases – see the recent successes in challenging the treatment of disabled people in Eastern Europe in cases such as Stanev and Campeanu – and Mrs McDonald’s partial victory in McDonald v UK, which I will come back to. The Eastern European cases centre on their institutions – but of course exactly the same kind of rights violations through restraint, forced medication and lack of respect for human dignity happen in institutions here. At the link above, Lucy Series describes Stanev as being about ‘poverty, isolation, institutionalisation, incapacity and access to justice’. Sound familiar at all?

But – the Courts can only apply the law as they find it. So after the ILF closure decision was quashed by the Court of Appeal, the new Minister (same government of course) took another decision to close the Fund, and this time he made sure he could show he understood precisely how bad this would be for the disabled people affected. As such the High Court held he complied with the PSED – which is only a duty of ‘due regard’, not a duty to achieve results.

Similarly when Elaine McDonald tried to show that her human dignity was being infringed by her being forced to wear incontinence pads at night rather than have a carer help her to use the toilet, she got nowhere in the domestic courts and only succeeded partially in the European Court of Human Rights (ECtHR). Her victory at the ECtHR was on the basis that her right to respect for private life under Article 8 ECHR was breached during the period that there had been no reassessment of her needs, but this did not result in her carer support being restored. This focus on process over substance seems to be a growing theme in ECtHR disability cases.

So getting the content of the law right is critically important. Having just read the whole of the new Care Act on the way here, there is no way we will be calling for more law just for law’s sake. The Care Act will bring some major improvements, but the short point is that it doesn’t go far enough. The group working on #LBBill think the law needs to change further – in at least the three ways set out in the first draft of the Bill and probably several other ways besides:

  1. New rights and duties to ensure all disabled people get the support they need to live in the community (clauses 1-3).
  2. Better safeguards when the state takes responsibility for where a person lives, including rights to approval for disabled people, families and where necessary the court, provision of proper information to inform decisions and careful review and scrutiny so people don’t get lost in the system (clauses 4-6).
  3. Changes to the Mental Capacity Act to strengthen the respect for disabled people’s views and give families and friends a proper right to be consulted (clause 7) and to the Mental Health Act to stop people with autism and learning disabilities being detained and treated under that Act where there have no mental illness (clause 8).

None of this is set in stone and we know clause 8 in particular is controversial. We are grateful for all the feedback we have had on draft one and we welcome more – either now or when we publish draft two towards the end of February.

Those who say it’s not just about more law are plainly right. We need at least three other things, and no doubt more besides:

  1. Better use of the existing law. Despite rumours to the contrary, we still just about have a legal aid system in this country and unlawful practices by public bodies can and should be challenged through judicial review. We need to keep being innovative as well – for example challenging the charities (including those with 99% state funding) who keep building new institutions. Nothing is truer in relation to adult social care than the maxim that if you build it the commissioners will come. There are legal proceedings which can be brought against charities which are very similar to judicial review and this route is something we need to consider and use.
  2. Genuinely radical approaches to funding – like Chris Hatton’s idea of guaranteed long term minimum Personal Budgets – why not lifetime? – for people currently in institutions. We definitely don’t need more funding tied up in bricks and mortar – the money needs to be with the human.
  3. Changing the culture to one where disabled people are properly respected as humans and rights holders and where (to again quote Lord Justice Munby) the state is the servant not the master of disabled people and families. This means disabled people need to be in the driving seat – not just as consultees but as employees, co workers in the process of making things change.

The law can lead on cultural change – see for example the way society has changed with and through the equality legislation. But we only change the law and change the culture by speaking with one voice, which has been power of the Justice for LB campaign right from #107days.

Connor’s death must be the moment when nothing is ever the same again, not just for the people who loved him but for all of us. Getting a Bill which shares his nickname through Parliament and into law will be just one small part of that. Together we can make that happen and make it the best Bill it can be.

Thanks for all your support and we welcome your questions and contributions tonight and for the rest of the discussion and debate about the draft Bill.

[1] Local Authority X v MM and KM [2007] EWHC 2003 (Fam) http://www.bailii.org/ew/cases/EWHC/Fam/2007/2003.html

%d bloggers like this: