Transcript Slide 1

Challenging times:
Supporting vulnerable people in times of austerity.
The role of the courts.
Ian Wise QC
Doughty Street Chambers.
13 March 2013
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Overview
• In this talk we will consider the role of the
courts generally in protecting the rights of
vulnerable people, both children and adults
• In doing so we will examine some of the recent
‘cuts cases’ and consider what benefit they have
provided for vulnerable people
• Recent court cases show that courts can
prevent cuts to services (but will not always do
so)
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Powers and Duties
• There are a vast range of powers and duties
imposed on public bodies by Parliament and the
common law
• We are particularly concerned with the duties
imposed on local authorities towards vulnerable
children and adults
• It is very important that the nature of these duties is
properly understood otherwise there is a real
danger that they will be downgraded into powers.
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Specific Duties
Duties have to be complied with regardless of resource
considerations because,
“to permit a local authority to avoid performing a
statutory duty on the ground that it prefers to spend the
money in other ways is to downgrade a statutory duty to
a discretionary power. .... If Parliament wishes to reduce
public expenditure on meeting the needs of sick children
then it is up Parliament so to provide”,
per Lord Browne-Wilkinson in R v East Sussex County
Council ex parte Tandy [1998] AC 714, 749.
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What do they have to do (1)
Examples of specific social care duties towards children
and adults include the duty to:
• Assess the needs of children who may be in need of
support as required by the Framework guidance and
adults as per s.47 of the NHS & Community Care Act 1990
• Provide services necessary to meet the needs of disabled
children and adults, s.2 Chronically Sick and Disabled
Persons Act 1970, see ex parte Barry [1997] AC 584
• Assess the needs of a person over 16 who cares for a
person over 18 who may be in need of community care
services, s.1 Carers and Disabled Children Act 2000
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What do they have to do (2)
Examples of specific educational duties towards children
include the duty to:
• Arrange “suitable education” for children not in school,
s.19 Education Act 1996
• Arrange the provision set out in a statement of Special
Educational Need, s324(5) Education Act 1996
• Arrange to meet the reasonable educational and training
needs of children in youth detention having regard to
their abilities and any special educational needs they may
have, s.18A Education Act 1996
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What do they have to do (3)
Examples of specific ‘leaving care’ duties towards children
include the duty to:
• Appoint a personal advisor for a child who has been
looked after by local authority for more than 13 weeks
after 14 years, para 19C, sch 2 to Children Act 1989
• Carry out assessments and produce pathway plans for
eligible children dealing with support to be provided up
to 21/25 years, para 19B, sch 2 to Children Act 1989
• See eg R(J) v Caerphilly CBC [2005] 2 FLR 860
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What do they have to do (4)
• In making decisions that affect children authorities have
to ensure , so far as possible, that their wishes and
feelings are considered, see eg s.17(4A) and s.20(6) of the
Children Act 1989
• Ensure that a child’s interests are represented, article 8
and CF v SoS [2004] 2 FLR 517
• Consult on any changes to services for children and
vulnerable adults
• Decision-makers must ensure that they are properly
informed by asking themselves the right questions,
Secretary of State for Education and Science ex parte
Tameside MBC [1977] AC 1014
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Procedural Obligations
Procedural obligations that have been invoked in recent
cuts cases include:
• The ‘due regard’ duty found in s.149 of the Equality Act
(and the former s.49A DDA)
• The duty to consult, both common law and statutory duty
• Cases have had mixed success, the most important
successful cases being the Birmingham and Isle of Wight
cases, R(W and others) v Birmingham CC [2011] 14 CCLR
516 & R(JM) v Isle of Wight Council [2012] 15 CCLR 167
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The Birmingham case (1)
• 4 disabled adults challenged B’ham’s decision to only
provide for ‘critical’ needs
• Most local authorities provide services to meet
‘substantial’ and ‘critical’ needs
• The move to ‘critical only’ would have meant a reduction
in services for many of the most disabled people in B’ham
(4,000+)
• Challenge was made to the B’ham’s policy decision and to
its related budget decision
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The Birmingham case (2)
One of the claimants was described in the judgment:
H is 29 years old. He has a severe learning disability,
autism, is profoundly deaf and has scoliosis of the spine. H
has a wide range of complex needs and can present with
challenging behaviour including smearing and eating his
own faeces. H lives at home with his parents, an
arrangement which depends upon the Council providing
92 nights of respite care annually. He has been assessed
as having a mixture of ‘critical’ and ‘substantial’ needs,
including ‘substantial’ needs relating to his requirement
for daytime provision.
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The Birmingham case (3)
On behalf of the claimants it was said that these
decisions were unlawful because:
• Birmingham had failed to comply with its duty to have
due regard to the need to take steps to take account of
disabled person’s disabilities as required by section 49A
of the Disability Discrimination Act 1995;
• There had been inadequate consultation on the proposed
changes, such consultation as there had been being
unclear and based on confusing information.
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The Birmingham case (4)
With regards to the disability equality duty the judge found:
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
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The Birmingham case (5)
The judge also found that the consultation had been
confused in that it was unclear in the consultation
documents whether the proposals related to personal
care only or all social services for disabled adults.
Furthermore the consultation only made clear at a very
late stage (and then not at all clearly) that the proposed
savings of £33m was not related to the move to ‘critical
only’ at all.
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The Birmingham case (6)
• The upshot of the judgment was that B’ham reverted to
providing services to meet ‘substantial’ as well as ‘critical’
needs
• B’ham has not tried to reintroduce these cuts to services
for disabled people
• This shows that the courts can indeed prevent cuts to
services for vulnerable people
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Other cases
• The High Court followed a similar approach in a case
against the Isle of Wight
• It has however taken a different approach in unsuccessful
challenges to policies of Lancashire and Manchester
which may have adversely affected disabled people
• Similar challenges have also been made in a number of
cases concerning library closures and council tax support
schemes with mixed success
• Current claims against revised housing benefit regulations
are ongoing
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KM v Cambridgeshire CC [2012] 3 All ER 1218
Essential Background:
• KM profoundly disabled young man (26 at time of SC
hearing) living with mother and two younger siblings
• Long-running dispute between KM’s mother and LA re
care needs – although agreed all needs ‘critical’
• Series of different calculations made by LA of level of
support required
• Independent SW assessed needs and drew up ‘care plan’
• LA’s final offer - £85k pa, but no proper link (we said)
between this sum and KM’s assessed needs
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KM (2)
KM turned on construction of the CSDPA 1970 s 2 duty, read
with the duty to make direct payments under Health
and Care Act 2001 s 57
Re CSDPA 1970, Lord Wilson identified three stages at [15]:
1. What are the needs of the disabled person?
2. In order to meet these needs, is it necessary for the LA
to make arrangements for the provision of any of the
listed services (in CSDPA 1970 s 2)?
3. If yes, what are is nature and extent of the listed
services for which it is necessary for the LA to make
arrangements?
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KM (3)
Where a LA intend to provide support by way of direct
payments, a further question arises (Lord Wilson at [23])
4) What is the reasonable cost of securing provision of the
services which have been identified as those for which it
is necessary for the LA to make arrangements?
No dispute in KM about 1) and 2), so in fact the issues were:
What services were needed? (question 3)
What would be the reasonable cost of securing provision
of these services? (question 4)
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KM (4)
Outcome – para [38]
• Rationality challenge failed; ‘rational for LA to use the
RAS ... provided that the result was cross-checked…any
flaw in the computation was likely to be in [KM’s] favour’
• LA ‘should have made a more detailed presentation to
[KM] of how in its opinion he might reasonably choose
to deploy the offered sum…’
• However, because of evidence filed post-issue ‘it would
be a pointless exercise of discretion to order that [the
decision] should be quashed so that the appellant’s
entitlement might be considered again...’
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KM (5)
Conclusions (1)
Appellant won on law but lost on facts
•
•
Court of Appeal’s ‘erroneous’ approach overturned –
need for reasons and transparency
RAS - permissible starting point but LAs must then
demonstrate that the indicative sum is reasonably
sufficient to purchase necessary services to meet each
eligible need
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KM (5)
Conclusions (2)
• High degree of scrutiny should be applied by Court to
rationality of resulting decisions – ie would a reasonable
LA conclude that the final sum offered is sufficient to
meet the assessed needs?
• Reasons must be provided, potentially in some depth –
but query whether the Court will quash decisions solely
because of lack of reasons if decision also not arguably
substantively irrational.
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KM (6)
• What the SC did not decide in KM was whether the HL
was correct in Barry to have decided (3:2) that local
authorities can take their resources into account when
deciding whether it is “necessary” to provide support in
order to meet the needs of a disabled person
• Baroness Hale expressed support for the minority view in
Barry that resources were not relevant to this issue
(R(McDonald) v Kensington & Chelsea RLBC [2011] PTSR
1266)
• This issue is likely to become increasingly important as
resources get tighter in children’s and adult services
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Some thoughts to take away
• Simple assertions that there isn’t the money to provide
services to children in need and vulnerable adults is not
enough and may be unlawful
• Failure to meet specific duties is unlawful
• Decisions to reduce services without consulting and
taking relevant information into account will also be
unlawful
• Legal framework for the protection of vulnerable children
and adults remains intact and is likely to remain so
• In time of cuts the need for vigorous representation of
vulnerable people is especially important.
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Questions and discussion
Ian Wise QC
Doughty Street, London
[email protected]
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