Social care lawyer, Belinda Schwehr on a ruling that helps challlenge opaque, illegal care plans for disabled adults
‘Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows’.
Those are the words of the Enacting Formula – the standard pattern of words which, with certain variations, precede the clauses of Bills at Westminster. In a single sentence, they capture the meaning of Parliamentary sovereignty.
They clearly don’t say that the legislature is the only source of this sovereignty – in other words, of law-making power. Rather, they tell a story. It is one of that power being shared by the Queen, through the executive branch of government, with the legislature.
That’s why it’s said that we’re governed by the Queen-in-Parliament: it is the place where the monarch, her Government, and the legislature come together. Parliament should work with harmony of a stately dance (come to think of it, “stately” is le mot juste), in which each dancer has his or her part to play. Some of the most riveting steps in their movements came about because of the English Civil War. The dance continues to this day.
The best way of understanding the Supreme Court’s ruling on Tuesday is to grasp that it reads the dance very differently – and, frankly, wrongly. “As long ago as 1611,” its ruling declared, the court held that “the King [who was then the government] hath no prerogative but that which the law of the land allows him”. The Court clearly has that civil war, and long-run up to it, very much in mind.
But the King (or, in this case, the Queen) is no longer “the government” – a truth that the learned judges seem to have forgotten as soon as they uttered it. Government is now a shared exercise between “the Queen’s most Excellent Majesty” and those “Lords Spiritual and Temporal, and Commons”. Or, to put it another way, Boris Johnson in no way resembles a Stuart Monarch. Quite apart from anything else, Charles I did not offer the Roundheads the chance to vote him out of office.
Neither is Dominic Grieve John Hampden; nor Lady Hale, Sir Edward Coke; nor Dominic Cummings “Black Tom Tyrant” – the Earl of Stafford, Charles I’s formidable adviser, who was eventually sacrificed as a scapegoat. If anyone thought they were. Above all, this Gollum of a Speaker is not, repeat not, John Lenthall.
A Community Care analysis of council policies and procedures for funding panels operating in adult social care has revealed that some are testing the limits of the Care Act 2014.
A freedom of information (FOI) request was sent to English councils asking for the terms of reference documents for any panels in their adults’ services department, and any policy or practice guidance supplied to social workers about how to submit or present cases to these meetings.
A survey also ran on Community Care over the summer asking adults’ social workers to tell us about the most recent case they took to the panel in their local authority.
This research follows our earlier investigation, which suggested funding panels were being used beyond their intended purpose, as set out in the Care Act statutory guidance.
We found then that social workers were concerned panels were being used to prioritise cost savings over peoples’ needs and, in some cases, override their professional recommendations. An FOI request also found more than 20 English councils were sending all requests for new or changes to existing care packages to a panel, which legal experts have since warned is potentially unlawful.
Our latest analysis shows that the policies referenced in some funding panels’ terms of reference documents could leave councils open to legal challenge. Three social workers also told us in detail about their experience of the last case they took to panel.
Our latest FOI request received responses from 107 of England’s 152 local authorities. Of this, 60 councils said they had a terms of reference in place for the panels they operate, and 55 provided us with a copy of the relevant documents.
We analysed 11 councils’ terms of reference documents
Source: The funding panel policies testing the limits of the Care Act : Community Care
A Deaf chief executive has won the right to question the government’s “discriminatory” cap on Access to Work (AtW) payments in the high court, in the latest legal challenge to the Department for Work and Pensions’ (DWP) disability policy agenda.
David Buxton, chief executive of Action on Disability in London, is one of many British Sign Language (BSL)-users who have been hit by the imposition of the cap on payments made by the AtW scheme, which provides disabled people with funding to pay for some of the extra disability-related expenses they face at work.
Now the high court has ruled that Buxton’s legal challenge can go ahead, with his lawyers set to argue – under the Equality Act 2010 – that the cap breached the public sector equality duty and subjected him to indirect discrimination.
His judicial review case is being funded by the Equality and Human Rights Commission.
It comes just weeks after another legal challenge forced work and pensions ministers into a climbdown over new personal independence payment rules that were found by the high court to be unlawful and “blatantly discriminatory”.
And earlier this month, a terminally-ill man, TP, won permission for a judicial review of the financial impact of the introduction of universal credit on disabled people with high support needs, through the loss of the severe disability premium and enhanced disability premium.
Disability News Service reported last year how Buxton had been told that AtW would only provide him with enough support to pay for interpreters three days every week.
Care England, a representative body for independent providers of adult social care, despite opposition from Essex Council, has obtained the Court’s permission to proceed with its Judicial Review proceedings against Essex County Council challenging the fee rates its pays to independent care home providers.
Professor Martin Green OBE Chief Executive for Care England says:
“Care England is deeply concerned about the Council’s conduct towards the care home market within Essex and as a result, the sustainability of that market”.
The Judicial Review challenge brought by Care England seeks to challenge the lawfulness of the Council’s fee setting decision in respect of the Old Contract and its refusal to review the rates under the New Contract. Care England believes the Council’s actions to date to be a breach of its responsibilities under the Care Act 2014.
Luke Davey brought the judicial review on the grounds Oxfordshire council’s decision to cut his support plan was in breach of the Care Act
The sister of a disabled man who died after being left destitute by having his benefits sanctioned has launched a high court legal challenge over a coroner’s refusal to hold an inquest into his death. David Clapson, who had diabetes, died in July 2013 as a result of an acute lack of insulin, three weeks after having his jobseeker’s allowance sanctioned. Because he had no money, he couldn’t afford to pay for electricity that would have kept the fridge where he kept his insulin working, in the height of summer, and he had also run out of food. An autopsy held after his death found his stomach was empty, and the only food left in his flat in Stevenage was six tea bags, a tin of soup and an out-of-date can of sardines. He had just £3.44 left in his bank account. But despite the circumstances of his death, and clear links with the sanctions system, no inquest was ever held, even though DWP admitted that it knew he was insulin-dependent. Now Clapson’s sister, Gill Thompson, has issued a
Headlines have been claiming that the junior doctors of Justice for Health have lost the judicial review of Jeremy Hunt’s new contract for them – but these are based on a misunderstandi…
A local authority is trying to push through millions of pounds of cuts to adult social care without allowing them to be properly considered by elected councillors, say disabled campaigners. Labour-run Merton council has just completed a consultation exercise among residents of the south-west London borough, in which it warns that the adult social care budget faces cuts of more than £5 million – or about nine per cent – in 2016-17. The planned savings include cuts of between five and 15 per cent to support packages, as well as cuts to respite care, meals-on-wheels and day centre staff. In its formal response to the consultation process, user-led Merton Centre for Independent Living (CIL) said the cuts were “unreasonable” and “a false economy”, and would leave disabled and older people “isolated, trapped at home, stressed and barred from contributing to society”. It added: “In response to the proposals, our members talked about having to take medication to cope with the changes, and
A disabled lawyer could seek a judicial review of the Scottish government’s draft budget, which he claims discriminates against disabled people by cutting hundreds of millions of pounds from local authority funding. Daniel Donaldson, director of Legal Spark Law Centre in Glasgow, is discussing a possible legal action with disabled people and their organisations concerned about the implications of this month’s budget. He said Legal Spark was being contacted by increasing numbers of disabled people who have faced “unfair reassessments” of their support packages by cost-cutting councils, even before the SNP budget saw proposed cuts of £350 million to council funding, a reduction of 3.5 per cent. Donaldson said: “We cannot see how the Scottish government’s current budget complies with their legal obligations under the Equality Act 2010 and the Human Rights Act 1998. “It is reasonably foreseeable that if you cut services within the public sector, that the people who rely the most on those