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USING THE LAW TO CHALLENGE UNLAWFUL
DECISIONS:
PRACTICAL CONSIDERATIONS
Alex Rook
Associate Solicitor, Public Law Department
Irwin Mitchell LLP
Summary
1. Who can bring the challenge, and how to fund it
2. How to challenge decisions by public authorities
3. Case Studies
Background
•
We all understand that times are tough, and that the pressure on local
authority and PCT funds is significant.
•
That having been said, local authorities and PCTs need to make the tough
decisions on funding, looking at what is in the individual’s best interests and
with the legal duties as set out firmly in mind – otherwise the ‘law’ of
unintended consequences is very likely to apply.
1. Who is the Claimant?
•
Who can advocate and support bringing the challenge?
1.
An individual claimant (via a litigation friend) or a family member
2.
An organisation in its own name
3.
Somebody with no connection to the case but where subject matter is of
wider interest to the organisation which decides to “intervene”.
1. Individual claimant
•
Legal Aid certificate for affected individuals whose means qualify. If a child,
the means are the child's if need to bring the matter before the court, but
could be the parents/carers for initial investigations
– Gives valuable protection against an adverse costs order if some part of
whole of the action is lost
– But may be subject to a financial contribution from “community” where
there are ‘other persons or bodies who might benefit from the
proceedings and can reasonably be expected to fund the case’
– Family member can bring the action on behalf of the claimant (who may
themselves qualify for legal aid
•
Conditional Fee Arrangements? Rare but possible, and discounted and
blended fees used
2. Organisation
•
•
•
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Key issue:
– Does the proposed action further the interests of the organisation?
– Whose approval needs to be obtained
Does the organisation’s constitution allow public interest legal action to
be taken?
Is it within the organisation’s objects i.e.
– In the Memo and Articles of Association for a company
– In the Trust Deed or Rules for an unincorporated body
– In the Charter for a body incorporated by charter (some
professional bodies)
Charities
– Follow Charity Commission guidance (see overleaf)
Organisation cont.
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Limiting exposure of the officers of the organisation
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Insurance (Directors and Officers/Trustees)
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Indemnity from the organisation itself
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Under S.29 Charities Act 1993 Advice from Charity Commission gives
protection to Trustees from personal liability for costs, if satisfied
that proposed action is:-
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Proportionate
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Appropriate
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Reasonable use of charitable funds
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Good prospects of success
Organisation Cont.
•
Limiting exposure of the organisation itself
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Insurance against adverse costs (ATE)
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Protective Costs Orders (PCO)
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Still a developing concept. In essence it means that the
Court orders a limit to costs recovery early on in the
case, certainly for the Claimant organisation but possibly for
both sides.
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Means that regardless of the outcome of the case, there is
certainty as to the ‘worst case scenario,’ but there may still be
the possibility of recovering all or part of the costs incurred
from the other party.
3. Intervening
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“Intervention” can be a cost effective way of getting a campaigning
organisation’s views across at virtually no costs risk
-
by written submissions
-
or additionally orally through an advocate
2. How To Challenge Decisions by Public Authorities
•
National charities – help families understand their rights/the law and push cases
forward at the right time
•
Parent / local groups – hopefully understand the basics and use it in your local
lobbying
–
Consider a complaint if time is not a factor - perhaps in tandem with making
initial enquiries but don’t delay! At the end of the complaints process if still
dissatisfied clients can go to the Ombudsman.
–
If you have reached the end of this process and are still dissatisfied with, for
example, an ongoing failure, or if this is an urgent matter, Judicial Review is
the ‘remedy of last resort’. This is particularly relevant if the lack of care
presents an immediate risk to the individual’s health and well being.
Judicial Review To Obtain Statutory Services
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Procedure by which High Court reviews lawfulness of decisions made by public bodies.
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Identify decision: What? Who? When? NB Time limits 3 months.
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Find document recording decision: letter / minutes / tribunal decision.
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Final decision? All rights of appeal / review exhausted?
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Is there an urgent need for remedy?
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Grounds broadly limited to
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acting outside or beyond powers given (ultra vires)
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acting irrationally or perversely
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procedural impropriety
Some Points For Judicial Review Cont
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Victory will lead to the decision being overturned
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Often negotiations during litigation may get you the result you want
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NB: overturning the decision may still mean that if the public body takes the
decision again, it reaches the same conclusion that you objected to in the
first place
Case Studies
• 1. Challenge to Isle of Wight’s policy towards
adults in need of social care
• 2. Challenge to the legality of the consultation
undertaken by the London Borough of Hillingdon
to close 3 adult learning disabled day centres
• 3. Challenge to the amendment by West
Berkshire Council to their charging policy
1. The Isle of Wight Judgment - [2011] EWHC 2911
• Isle of Wight’s decision
• The Claimants
• Grounds of challenge
• Defence
• Judgment
• The implications…
Isle of Wight Council’s decision
•
Decision to reduce budget for adult social care by restricting support
for people with disabilities to those assessed as being “critical” and
“those people who are assessed to have needs defined as
substantial who are at the greatest risk of not being able to remain
at home and be safe.”
•
Decision taken pursuant to business plan and proposed budget for
2011-2012 to change eligibility criteria for providing support to meet
the needs of disabled people.
•
National guidance (“Fair Access to Care Services” or “FACS”)
provides for needs to be assessed as low, moderate, substantial or
critical.
•
Previously, IOW provided support for people assessed as
substantial or critical
The Claimants
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Two claimants, both severely disabled adult residents of Isle of Wight.
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JM: aged 32. He has severe autism and a brain injury acquired at birth.
He lives with his parents who are retired and ‘devote their lives to his
care’. He needs support and supervision throughout the day and would
be extremely vulnerable if left unattended.
•
NT: aged 31. He has autism and a learning difficulty. Since 2000 he has
lived in residential accommodation provided by the defendant during the
week, but returns home to his mother every weekend. Although he can
attend to many of his basic needs he is highly vulnerable and requires
support with cooking, shopping and taking medication.
•
As recipients of adult social care services from the Council, both had a
direct interest in the decisions challenged, one of who had not been
reassessed under the new policy.
Grounds of challenge
• The Claimants claimed the Defendant acted unlawfully
by:
i.
Failing to comply with the requirements of the
statutory guidance governing the provision of adult
social care;
ii. Failing to comply with the public sector equality duty
in the Disability Discrimination Act 1995, s.49A. This
encompassed an argument that the consultation itself
was flawed.
Equality Act 2010
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Brings together 9 separate pieces of legislation into one act to tackle
inequality – including Disability and Sex Discrimination and Race Relations
Act.
•
Refers to protected characteristics (S4) – age, disability, gender
reassignment, marriage/civil partnership, pregnancy, race, religion, sex or
sexual orientation.
•
Key piece of legislation to challenge the lawfulness of the cuts
Public Sector Equality Duty
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Section 149(1) introduces three equality aims:
A public authority must, in the exercise of its functions, have due regard
to the need to:-
(a) Eliminate discrimination, harassment, victimisation and any other
conduct that is prohibited by or under this Act;
(b) Advance equality of opportunity between persons who share a relevant
protected characteristic and persons who do not share it;
(c) Foster good relations between persons who share a relevant protected
characteristic and persons who do not share it (new)
Purpose of the Equality Duty cont..
•
The second aim (advance) imposes most onerous duty – see s149(3) need
to—
(a) remove or minimise disadvantages suffered by persons who share a
relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant
protected characteristic that are different from the needs of persons who do
not share it;
(c) encourage persons who share a relevant protected characteristic to
participate in public life or in any other activity in which participation by such
persons is disproportionately low.
Purpose of the Equality Duty
•
EHRC Guidance ‘The essential guide’ at p6 states:
The broad purpose of the equality duty is to integrate consideration of equality
and good relations into the day-to-day business of public authorities. If you do
not consider how a function can affect different groups in different ways, it is
unlikely to have the intended effect. This can contribute to greater inequality
and poor outcomes.
The general equality duty therefore requires organisations to consider how
they could positively contribute to the advancement of equality and good
relations. It requires equality considerations to be reflected into the design of
policies and the delivery of services, including internal policies, and for these
issues to be kept under review.
Grounds of challenge
What does the duty entail?
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May require positive steps to be taken if the circumstances require it
to address disadvantage to disabled people;
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If changing a function or proposed policy would lead to significant
benefits to disabled people, the need for such a change will carry
added weight when balanced against other considerations;
•
If a risk of adverse impact is identified, consideration must be given
to measures to avoid that impact before fixing on a particular
solution;
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Impact assessments must contain sufficient information to enable a
public authority to show it has paid due regard to the duty and
identify methods for mitigating or avoiding adverse impact;
The Defence
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IOW argued that it was clear from the evidence that the Council
were ‘fully aware of their obligations’
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Argued that the existence of an equality impact assessment was
itself ‘very strong evidence that due regard was had’
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Permissible for the assessments to be ‘couched at a fairly high level
of generality’ as they would be undertaking reassessments looking
at individual needs.
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That the Claimants were being ‘pernicious’ in bringing the claim
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In essence, IOW submitted that it had identified and considered
what alternative courses of action available and their implications,
the nature and extent of the impacts and how those impacts to be
addressed and mitigated.
Judgment
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Mrs Justice Lang held that:-
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Court's role to assess whether IOW complied with duty under s.49A DDA
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“the consultation document provided insufficient information to enable those
consulted “to give intelligent consideration and an intelligent response . . .
Unfortunately it did not provide any detail about the numbers of users whose support
would be reduced, not even giving the figures which were provided in the report to
Cabinet on 14 September 2010 (see paragraph 20 above). It did not give any detail
about the costs and potential savings. Nor did it explain what types of services would
or would not be included under the revised criteria. Consultees, including the parents
of the Claimants, were left uncertain as to what impact the revised criteria would have
on the assistance they received from the Council.”
•
The Council did not even comply with its own guidance on equality impact
assessments.
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‘The problem caused by the lack of detail about the proposals was exacerbated by
the vagueness of the proposals themselves’
Judgment
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“Where, as here, a council was considering provision for the disabled, it was self
evident that it would have the needs of the disabled in mind. However, I endorse
the observation of Walker J in R (W) v Birmingham City Council, when he said, at
[179]: I readily accept that throughout the process the Council was giving
consideration to how to address the needs of the disabled. In that sense its
decisions taken in relation to adult social care were decisions which were relevant
to its performance of the s.49A duty. That is not the same thing, however, as
doing what s.49A seeks to ensure: namely to consider the impact of a proposed
decision and ask whether a decision with that potential impact would be
consistent with the need to pay due regard to the principles of disability equality
..”
•
For the reasons set out above, the Council did not conduct the rigorous analysis
and consideration required in order to satisfy the ‘due regard’ duty under s.49A
DDA 1995, principally because it did not gather the information required to do so
properly.”
2. Hillingdon Day Centres
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3 Claimants, each of whom are disabled adults who live in Hillingdon.
All three of them are in their mid-40’s and live at home and are cared
for by their respective families.
•
They currently attend one or other of three day centres in Hillingdon
(Phoenix, Woodside or Park View) all day 5 days per week. This is a
service that they rely upon to meet their assessed needs, and which
provides their parent/carers with some much needed respite.
•
Judicial Review proceedings were brought to challenge Hillingdon’s
decision of 26 January 2012 to close those three day centres and,
instead, open a new facility (offering many fewer places) at
Queenswalk.
Hillingdon Day Centres
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It was argued that the decision taken by Hillingdon in January 2012
was unlawful because:
(a) The consultation on which it relied did not meet the basic
requirement that consultees must be provided with sufficient
information to respond meaningfully to what is being proposed.
(b) Councillors did not have or obtain sufficient information about
the impact of what was being proposed when they took their decision.
(c) There was an absence of any meaningful information about how
what was proposed would impact on disabled people such that the
Council did not lawfully discharge the public sector equality duty
(PSED).
Hillingdon Day Centres
In particular it was argued that the Equality Impact Assessment (EIA):
1. Contained no evidence-based information about the specific impact on
disabled people of the proposals;
2. Did not explain the nature of the needs of people who would lose
services,
3. Did not explain what the detriment would be to disabled people;
4. Did not state how many disabled people would be detrimentally affected;
and
5. The suggestions in the EIA for mitigating the effects of the proposal were
accordingly made without a proper understanding of the potential
detriment.
Hillingdon Day Centres
•
On 25 July 2012, HH Judge Birtles QC sitting as a Deputy High Court Judge
in the Administrative Court granted permission for that challenge on all 3
grounds of claim.
•
Hillingdon shortly afterwards agreed that it will consider afresh the question
of whether to decommission the three day centres, and the Judicial Review
proceedings were withdrawn.
•
Hillingdon commenced new consultation on 1 November 2012 which will
consult again on the proposals, having undertaken a number of steps
including an assessment of the needs of those affected . . . .
3. West Berkshire Charging policy
• Assessment – s47 NHSCCA 1990
• LA absolute duty to meet eligible needs
• Financial assessment should only take place after
assessment of need
• Services should not be delayed to await financial
assessment (Prioritising Need)
Social care services – who pays?
• LAs have the power to charge for services
• No presumption in law that they should charge – but many LAs are now
charging
• Legal framework in Health and Social Services and Social Security
Adjudications Act (HASSASSA) 1983 and Fairer Charging Guidance
• Not included: after-care services provided under section 117 of the
Mental Health Act
• Provision of advice about the availability of services or for assessment,
including assessment of community care needs.
Paying for social care services – the law
• Health and Social Services and Social Security Adjudications Act
(HASSASSA) 1983.
• Section 17(1) – a local authority “may recover such charge as it
considers to be reasonable.”
• S17(3) - where a person’s means are insufficient for it to be reasonably
practicable for her to pay for the service there shall be no such charge
Paying for social care – the law (2)
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Fairer Charging Policies for Home Care and other nonresidential Social Services: Guidance for Councils with Social
Services Responsibilities
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LAs must follow Guidance unless there is good reason not to do
so – see R v Islington London Borough Council, Ex p Rixon
(1998) 1 CCL Rep 119, 123J-K
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Where they do decide to charge for services, councils also
retain substantial discretion in the design of charging policies.
Paying for social care services - the financial assessment
•
Where Councils assess disability related benefits as part of a person’s
net income: ‘Councils are expected to assess disabilityrelated
expenditure specifically for all users whose disability- related benefits are
taken into account as income.’
•
LAs must base their assessment on persons’ income less disability related
expenditure (DRE)
•
Councils should ensure that comprehensive benefits advice is provided to
all users at the time of a charge assessment. Councils
have a
responsibility to seek to maximise the incomes of users, where they
would be entitled to benefits, particularly where the user is asked to pay a
charge.
Paying for social care
•
“The overall aim should be to allow for reasonable expenditure
needed for independent living by the disabled person. Items where
the user has little or no choice other than to incur the expenditure,
in order to maintain independence of life, should normally be
allowed”
• the process of assessment and claiming for items of disabilityrelated expenditure should not be made unduly complex, particularly
for users without high care needs. The process should not be
primarily paper based, or carried out by post as a full list of possible
items without explanation could be confusing for users. ……users
will very often need personal help and advice on how to claim.
Assessments involving disability related expenditure should,
therefore, normally be carried out by personal interview in the user’s
own home.
• LAs must leave net income of income support plus 25%
Case study – West Berkshire
• Judicial review of West Berks’ policy
• Acted for 3 disabled adults
• Challenged West Berks’ policy on the grounds that it was
unlawful as:
 WB would only take into account DRE where expenditure
related to an ‘eligible need’
 WB has a policy of only meeting ‘critical’ needs – so a
double detriment to disabled service users!
 Policy also failed to allow items on the Fairer Charging list as
DRE
 West Berks initially defended the claim, but conceded and
policy has been amended after proceedings were issued
 Which other councils have adopted a similar policy?
Charging – issues to look out for
• Not taking into account DRE/using flat rates to assess DRE
• Failing to take into account DRE referred to in the Fairer Charging
Guidance
• Flat rate charges for services
• Lack of individual assessments by personal interview (though would
need to show detriment to service user if a challenge is to be
brought)
• Failure to allow the LA discretion to waive charges where not
reasonably practicable for the individual to pay
• Failure to leave individual with net income of income support plus
25% - this sum will vary
Public Law Department
Web : www.irwinmitchell.com/servicesforyou/adminpubliclaw
Email: [email protected]
Telephone: 0207 421 3907