Social care lawyer, Belinda Schwehr on a ruling that helps challlenge opaque, illegal care plans for disabled adults
A Court of Appeal judge has thrown out a case against Oxfordshire County Council, the borough in which David Cameron’s former constituency sits. And in doing so, he has effectively given local authorities a free pass to override both national law and the recommendations of the UN.
As The Canary previously reported, on Thursday 17 August the Court of Appeal was hearing the case of Luke Davey. In November 2016, a judge had granted the 40-year-old from Oxfordshire a judicial review against the council. This followed its 42% cut to the amount he received to pay for his care and support. Davey has quadriplegic cerebral palsy, is registered blind, and requires assistance with all of his intimate personal care needs.
Davey’s case was a legal first, because his lawyers used the Care Act 2014 to argue that the council had broken the law.
The establishment sticking together?
It is understandable that the claimant, Mr Davey, and other members of his family objected to the updated needs assessment, which has resulted in a substantial reduction in the level of the claimant’s personal budget. I have great respect for the manner in which the claimant, his family and his team of carers cope with his difficult situation. But that is not the same thing as holding that the council’s actions have been unlawful.
An opportunity missed
Another case of historical sexual abuse that when originally reported never got past first base. This rejection coupled with the original abuses will have created untold major problems for the abused and for then to deliberate on the Statue of Limitations beggars belief, just what is our justice systems wishing to achieve. For it should be that those who commit criminal acts should be brought to book and not orchestrate means to minimise this. There may be good cause for Statute of Limitations on some aspects, but others should be exempt especially those of a sexual nature.
The victim needs to be a major consideration as they had little or no choice in the actions committed, unlike their abusers.
Kevin Young suffered horrendous sexual abuse as a child must have suffered again having to go through these court ordeals.
Kevin, went to Consett Police Station, when he came out of Medomsley, told them of his sexual abuse, and even showed them the ligature marks on his neck. He was told that to make allegations against a Prison Officer was a criminal offence when on licence.
Who was that callous police officer?
Kevin got on with life as best as he could and became a succesful businessman owning 22 cafes, and a large security business. But after literally bumping into his abuser in York who had become a Reverend in the United Reform Church, he went to pieces. He went from having a £2m business to a recluse, such is the effect of PTSD and mental illness following abuse.
Husband was tried in 2003 for a small fraction of his…
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Attacking judges puts democracy in danger.
The government’s “bedroom tax” discriminates unlawfully against disabled children, the court of appeal has ruled. The appeal court, which overturned a high court decision, was hearing the case of two disabled grandparents who care for their disabled grandson in an adapted three-bedroom bungalow in Pembrokeshire, Wales. The court also ruled that the bedroom tax – or the spare room subsidy removal (SRSR), as it is called by the government – discriminates against victims of domestic violence, after hearing the case of a woman whose home had been adapted to include a “panic room” to protect her from a violent ex-partner. The appeal court had heard that Paul and Susan Rutherford had been found to be “under-occupying” their home and had their housing benefit cut by 14 per cent, even though their 15-year-old grandson Warren, who lives with them, needs 24-hour care from at least two people at a time. Two paid care workers stay overnight in their bungalow at least twice a week, but the
‘………….By Ben Troke
Clarity on the law in relation to deprivation of liberty cannot come soon enough in the light of another landmark case, explains Ben Troke of law firm Browne Jacobson
This morning, the Court of Appeal handed down a landmark judgment on the ‘Re X’ process for authorising deprivations of liberty in the community.
This is the latest chapter in a story that started last March when, in the Cheshire West judgement, the Supreme Court clarified the definition of a deprivation of liberty as a person being “under continuous supervision and control and not free to leave” the place they were in, regardless of whether this arrangement would be appropriate or ‘normal’ for a person with those particular needs.
This made it obvious that there were tens or hundreds of thousands of people who are deprived of their liberty by the arrangements made by the state for their health and social care who lack capacity to consent to this. Their right to liberty and security under Article 5 of the European Convention on Human Rights rights would be breached unless a due legal process were in place to review and authorise this. Without this, people deprived of liberty unlawfully would have a right to compensation.
Colossal increase in cases
The result was a colossal increase in applications to the Deprivation of Liberty Safeguards (Dols) system, which exists to allow authorisation of a deprivation of liberty in a care home or hospital setting only. But arguably the greater challenge concerned cases in other settings, for example for people with dementia or learning disability in their own homes or supported living who have very intensive care packages likely to amount to being under continuous supervision and control and not being free to leave.
For those cases, outside the scope of Dols, the deprivation of liberty can only be lawfully reviewed and authorised by the Court of Protection. Following Cheshire West, no one knew how many applications to court will have to be made to authorise or review such placements, but it would certainly be tens of thousands.
The onus would on the public body responsible for the situation to bring the case to court – usually the local authority or CCG which commissions the care package that may amount to a deprivation of liberty.
In the light of Cheshire West, the court processes previously in place for handling these cases, geared and resourced to deal with a couple of hundred such cases a year, needed serious rethinking.
This is what Court of Protection president Sir James Munby was trying to achieve in proceedings, which came to be known as ‘Re X’, in which he pulled together a sample of relevant cases, and convened a hearing in June 2014. At this, many individual parties, as well as representatives from government, local government, the Law Society and other interested parties, addressed him on the kind of process that should be implemented.
In August and October 2014 Sir James Munby published judgments in which he set out his thinking on some of the key procedural and practical issues. He asserted, for example, that it was permissible for a process to review a deprivation of liberty without P (the person deprived) being a party to proceedings, and that while such cases must be reviewed by a judge, rather than a court official, this could be done on the papers, without a hearing, where there was no substantive dispute.
Reflecting these judgments, a new practice direction and Court of Protection form (COPDOL10) were published in November 2014, establishing the ‘Re X’ process along these lines, and a raft of judges around the country have been trained up, ready to deal with the expected flood of cases. There’s also been an amendment to the Court of Protection Rules, due into force on 1 July 2015, which requires the court to consider whether P’s participation can be secured and interests protected in another way, without being a party to proceedings.
Two of the individuals in the Re X cases went to the Court of Appeal arguing, among other things, that a process determining their deprivation of liberty without them being a party was not fair and breached their human rights. Others joined the appeal on related issues for a hearing in February 2015.
Each of the individual appellants had in fact been made a party to the proceedings to review their deprivation of liberty, and so had arguably no standing to say that they were adversely affected by the Re X approach. That said, when the court did hear argument about the issue of party status, there was a lot of doubt that the process could be fair if P was not to be joined as a party.
The judgment published this morning includes a fully reasoned contribution from each of the three judges, led by Lady Justice Black. The headlines are that:-
- Though sympathetic with the challenges facing Sir James Munby, all three judges were critical of the unorthodox approach taken to deal with the issues (for example, in paragraphs 58, 127 and 146 of the judgement).
- However, they concluded that the Court of Appeal had no jurisdiction to overturn the ‘Re X’ process, which should instead be properly challenged by judicial review against the practice direction (paragraph 50).
- Crucially, they all said that if they actually did have the jurisdiction to decide this, they would have said that P should be a party to any deprivation of liberty proceedings.
Why P should be a party
On the last point, Lady Justice Black said: “…it is not appropriate in my view for P’s participation in proceedings to turn in any way upon whether he wishes to participate, or indeed on whether he expresses an objection to the form of care that is being provided or proposed. There is too high a risk of slips ups in such a scheme. Article 5 requires greater protection from arbitrariness.
“I do not go so far as to say that no scheme in relation to deprivation of liberty would comply with Article 5 unless it provided for deprivation of liberty proceedings in which P was formally a party … [but] given the tools presently available in our domestic procedural law, I see no alternative to that being so in every case.” (paragraphs 103-104)
Lady Justice Gloster said that Sir James Munby’s conclusion that P need not be a party “is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention or the Strasbourg jurisprudence” (paragraph 127). Lord Justice Moore-Bick said essentially the same thing at paragraph 171.
A fatally flawed process
Strictly, the views on the substantive issue of P’s party status is just non-binding as the court had already decided that it didn’t have jurisdiction to decide these issues in this appeal. But there’s no doubt that this leaves the current Re X process in confusion, if not fatally flawed.
There is already grave concern at the relative small take up of the Re X process, with only 200 or so applications made to date nationwide, and this reversal for attempts to streamline the process may not help encourage more engagement.
If P must be a party to any proceedings, with a litigation friend, and all the issues of access to representation and funding which that involves, this will inevitably be a lot less streamlined than Sir James Munby may have hoped, with consequences for delay, costs and the resources and time needed generally to get the huge number of cases through the process.
Law Commission review
Unfortunately, the ‘cavalry’ – the Law Commission proposals for reform of the whole system – is still some distance away. Though its consultation is due out in a few weeks on 7 July 2015, draft legislation is expected to be two years behind that in Summer 2017, and will take some time to implement, even if adopted. Though there may now be even more pressure to accelerate that timescale, with a debate in Parliament scheduled for tomorrow afternoon, it is hard to see any new system being in place sooner than 2018.
In the meantime, and despite the best attempts of some judges to pare back the impact of Cheshire West by finding ways to disapply it in community settings, we have the ongoing problem of widespread unlawful deprivation of liberty, potentially incurring significant liabilities and, for the community settings in particular where Dols cannot be used, the well intentioned attempt to produce a ‘streamlined’ route through the Court of Protection now in some confusion.
Worst of all words
We await any formal response from the Court of Protection or the Ministry of Justice with interest, but this is not just of academic interest. At the frontline we risk being left with the worst of all worlds – with individuals identified as having rights without the practical means for these to be readily implemented, and already stretched public bodies with obligations that cannot practically be met. The cavalry cannot arrive soon enough!
Ben Troke is a partner at the law firm Browne Jacobson and head of its health and social care advisory team. This article was originally published in Browne Jacobson’s health law bulletin.
Campaign groups have warned that inconsiderate motorists could ignore disabled parking bays in the wake of a controversial legal ruling on wheelchair users’ rights.
The Court of Appeal said bus operators are not required to enforce policies requiring able-bodied passengers to vacate the wheelchair spaces on board their vehicles, including mothers with prams.
Disability Rights UK, which campaigns for equality for wheelchair users and other disabled people, said the ruling could have wide-ranging implications.
Sue Bott, the charity’s director of policy, said: “I can imagine a situation where a supermarket which has a number of spaces for wheelchair users and, when the car park is busy, a disabled driver asks someone to move.
“If they refuse a supermarket or other company would simply say they can only ask their customers not to park there. If a person refuses to move the retailer may say they are not obliged to do anything about it – that is very concerning.”