Community Care Law UpdateISSUE 3 OCTOBER 2013

IntroductionThis bumper edition covers all developments in community care law between July and September 2013. Inside, we introduce a new series with in-depth analysis of key aspects of the Care Bill. We take a closer look at two developing areas of judicial review: reliance on EC treaty rights by those who otherwise have no recourse to public funds, and s.47 assessments and care planning for prisoners nearing release. We consider three nationally important cases arising out of the latest round of spending cuts: the challenge to Worcestershire’s maximum expenditure policy; the challenge to the bedroom tax, and the appeal to the Court of Appeal in the Barnet/EasyCouncil case.

We include a special feature on cases involving former relevant children, and the latest updates on the government’s proposals to reform legal aid, judicial review, and even the public sector equality duty. Finally, we bring you case reports and comments on all other community care cases decided during the summer, including cases relating to age assessments, no recourse to public funds, s.117 (mental health aftercare), care home funding, and costs in cases where judicial review proceedings are settled before a final hearing.

Maximum expenditure policiesR (D) v Worcs CC [2013] EWHC 2490 (Admin)

ISSUE: During the recession local authorities have been searching for novel ways to limit their expenditure on adult social care. Common methods include across-the-board cuts to RAS scales (ie the pounds ascribed to points on the RAS scale), cutting discretionary service facilities such as day centres, and wholesale changes to the eligibility thresholds, such as moves to critical only provision and even

talk of moves to a new band of “super-critical” needs. One measure which has until now received relatively less attention has been local authority maximum spending policies.

Worcestershire implemented a policy by which the maximum weekly expenditure on a person’s care in the community was to be no more than the net weekly cost of suitable care at home.

This policy was challenged on the familiar grounds of consultation (alleged failure to provide consultees with sufficient information to enable them to make a sufficiently informed response) and breach of the public sector equality duty.

Maximum expenditure policies ................. 1

Bedroom tax challenge .............................. 2

EasyBarnet on appeal ................................ 3

Analysis of the Care Bill: Assessments ....... 3

Special Focus: Former Relevant Children .... 5

Assessments and planning for prisoners nearing release .......................................... 7

No recourse to public funds – failure to disclose information ................... 8

NRPF Special focus: Treaty rights of EU nationals ................................................... 8

Continuing healthcare ............................... 9

Legal aid cuts and JR reform .................... 10

Care home funding challenges ................. 11

Public sector equality duty ...................... 11

LA age assessment decisions and UKBA ... 12

Costs ....................................................... 12

Contents

Community Care Law NewsletterEditors: Jonathan Auburn and Benjamin Tankel

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JUDGMENT: The challenge was dismissed. As regards the consultation challenge, the Court rejected the argument that the consultation had failed to identify the consequences for those who were affected. That submission had been made on the premise that half of those who fell within the policy would have to choose between staying at home and not having all of their eligible needs met, or moving into a residential home. However the judge rejected that starting premise as to the consequence of the policy.

The public sector equality duty challenge was also dismissed. The Court rejected the allegation that Cabinet members did not have adequate information to consider the issue properly. Sufficient information had been given to enable the Council decision-makers to make an informed choice. The Court also rejected an argument that the EIA was defective because it did not contain any quantitative or qualitative data concerning the groups affected. The Court held that EIAs, or the consideration undertaken to comply with the public sector equality duty, did not necessarily have to involve examination of quantitative or qualitative data.

COMMENT: The Court took quite a conservative approach to the issues. The dismissal of the public sector equality duty challenge follows the current trend in the court’s approach to such challenges, ie courts have been giving public bodies considerable leeway in their handling of equalities issues and in the adequacy of the equalities analysis. It is also notable that, although the United Nations Convention on the Rights of Persons with Disabilities was cited to the Court, it was barely mentioned in the judgment. The court failed to, or did not wish to, grapple with these issues. That is unfortunate.

Bedroom tax challengeR (MA and others) v Secretary of State and others [2013] EWHC 2213 (QB)

FACTS: This was the test case challenge to the government policy described in the press as a “bedroom tax”. This is a change to the Housing Benefit Regulations 2006 which caps housing benefit by reducing the eligible rent in cases where the number of bedrooms in the property let exceeds the number permitted. In short, if a person has more bedrooms than the government says they

need, if they do not move they have their housing benefit reduced.

The challenge was brought on two main grounds. First, an allegation of unlawful discrimination against disabled people or their relatives. Second, breach of the public sector equality duty.

JUDGMENT: The Court rejected both grounds of challenge. As regards the claim that the measure constituted unlawful discrimination against those with disabilities on the basis that this group had a need for a spare room for carers, the Court held that this was really a claim of indirect discrimination, ie wrongly treating disabled people in the same manner as non-disabled, and so failing to give effect to their difference to non-disabled people. One particular problem the court had with this argument was that the court found it extremely difficult to identify the minority of housing benefit claimants who were unable to share a bedroom due to the nature and extent of their disabilities. The court regarded this as material to whether indirect discrimination was shown, as the fact that there was no precise class of persons who needed extra bedroom space by reason of disability, which class could be identified in practical and objective terms and sufficiently differentiated from other groups equally in need of extra space for other reasons, was a powerful factor in the question of justification.

The public sector equality duty challenge was strongly rejected. The court reiterated that it was not for the courts to micro-manage the policy-making process, and said that here the claimant’s challenge looked like a list of objections to the policy under the guise of matters left unconsidered by the secretary of state.

The Court gave very little weight to the United Nations Convention on the Rights of Persons with Disabilities and the Article 19 tight to independent living.

COMMENT: It is not surprising that the Court was not willing to strike down such a prominent and flagship government policy. The failure of the public sector equality duty challenge follows the recent trend in this area. Almost all of the public sector equality duty challenges brought this year have failed. The tide seems to have turned decisively against this particular ground of challenge. Whereas previously courts emphasised the importance of embedding equalities thinking throughout decision-

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making, now courts talk more about not micro-managing EIAs.

It is notable that the Court was very dismissive of the reliance placed on the United Nations Convention on the Rights of Persons with Disabilities. This Convention had been the subject of significant judicial comment recently, most notably in Burnip [2012] EWCA Civ 629. It appears that the Court was keen to dampen that initial judicial enthusiasm for this Convention.

EasyBarnet on appealWe reported in the last edition on R (Nash) v Barnet LBC [2013] EWHC 1067 (Admin), which was the High Court’s decision on the challenge to Barnet’s scheme for comprehensive outsourcing of its functions, described in the press as “EasyCouncil”. The High Court rejected the challenge on the basis

of delay, though also went on to examine the substance of the grounds of challenge.

The Court of Appeal heard an appeal in August and dismissed the appeal: R (Nash) v Barnet LBC [2013] EWCA Civ 1004. The Court dealt with the matter only on the basis of the time point. Davis LJ for the Court held that the issue was not one of when the decision was finally or irrevocably made, but rather when a decision was taken in respect of which the statutory duty to consult first arose, because it was the alleged failure to consult which was the essence of the proceedings. That decision was taken a number of years earlier. It was wrong to look at the much later decision about the terms of particular contracts. Further, it was wrong to align the duty to consult with the date of resolving to enter into a particular contract. Davis LJ also rejected an argument based on the Burkett case. Having dismissed the appeal on the basis of the time point, the Court refused to consider the substantive grounds of challenge.

Analysis of the Care Bill: AssessmentsThe Care Bill is currently proceeding through Parliament and is scheduled to come into operation early next year. Over the coming editions of this Bulletin we will be examining particular areas which the Bill will reform. We start with the assessment provisions.

Currently the central assessment provision is s.47 NHSCCA 1990. The new provisions are clauses 9-12 of the current Bill. The principal provision is cl.9. The trigger for assessments (now called “needs assessments”) is “Where it appears … that an adult may have needs”. Despite slight differences in wording, this is substantially the same as the existing s.47 NHSCCA 1990. Thus, as is currently the case, there is no need for anyone to have requested an assessment.

Clause 9(3) states that the duty to assess applies regardless of the authority’s view of (a) the level of the adult’s needs for care and support, or (b) the level of the adult’s financial resources. This effectively puts on a statutory footing the current position pursuant to the common law and statutory guidance. The combination of these points, and their codification into statute, means that there will continue to be a very low threshold for assessments.

Interestingly, the Bill is highly prescriptive as to the content of assessments. Whereas previously there was minimal input from primary legislation as to the content of assessments, the Care Bill now sets out in cl.9(4) a detailed list of the matters to be covered. This is principally by reference back to the earlier “well-being” provision, which brings in the following matters: (a) physical and mental health, emotional well-being and personal dignity; (b) protection from abuse and neglect; (c) control by the individual over day-to-day life (including over care and support); (d) participation in work, education, training or recreation;(e) social and economic well-being; (f) domestic, family and personal relationships; (g) suitability of living accommodation; and (h) the individual’s contribution to society. Currently assessments are usually divided into similar sections, and so there should be relatively little change in practice here.

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Clause 9(4) also requires that assessments contain the outcomes that the adult wishes to achieve; whether the provision of care and support could contribute to the achievement of those outcomes; and whether the adult’s own capabilities and any support available from friends, family or others, and any other matters, could contribute to the achievement of those outcomes. Local authorities may decline to provide support where a person is already having a need met by others. The new Bill brings into the assessment process specific consideration of this matter.

Clause 10 provides a detailed framework for carer’s assessments, which brings them much closer to assessments for people in need of care and support. The new duty arises where it appears that a carer may need support “currently or in the future”. This expands the scope of the duty: it is no longer necessary that carers already be providing or intending to provide a substantial amount of care on a regular basis.

Local authorities will have to review their processes for assessing the needs of carers, and will now need to carry out far more assessments than they currently do, in particular assessments of carers who may have support needs in the future. The Government’s own analysis estimates that there will be up to 250,000 extra carers assessments each year (ie above the current 400,000 a year). In addition, more self-funders will seek assessments because of the new funding cap, which means that even self-funders will need to be assessed and tracked annually. The Government predicts this will result in up to 230,000 additional assessments when the cap comes into force in 2016-17.

Clause 11 deals specifically with the position where a person refuses an assessment or carer’s assessment. In such cases the local authority will not be required to assess, subject to two exceptions: (1) where the person lacks capacity and an assessment is in their best interests; and (2) where the person is experiencing, or is at risk of, abuse or neglect. This brings useful clarity in an area that has caused considerable uncertainty in the past. There are a number of cases stating that local authorities should not necessarily take a person’s refusal to be involved in the assessment process as the final word on the matter, and that authorities need to be persistent to ensure that vulnerable people are not unwisely leaving themselves at risk: eg R v Kensington & Chelsea RLBC, ex p Kutjim, R (J) v Caerphilly CBC and R (M) v Hammersmith & Fulham LBC.

Clause 12 envisages that regulations will be passed which provide much greater detail as to the assessment process. No draft regulations have been produced yet.

Finally, Clause 13 provides that there will be national eligibility criteria set by regulations. This will finally put the position established by R v Gloucs C, ex p Barry on a statutory footing, and will establish national standards for local authority care support. It will also, presumably, end the current situation where some local authorities have limited themselves to only critical needs, or seek to establish new bands of “super-critical” needs to further limit social care provision.

The draft regulations setting out the national eligibility criteria have recently been published and can be found here at pp.15-16. The accompanying policy papers states that the new draft criteria are intended to reflect the current practice of most authorities, ie set at substantial needs. However the wording of the draft regulations is not that of “substantial” needs as it would be known to those working in this field.

The main effects of the Care Bill as regards assessments are to codify existing practice and guidance, providing a single statutory base or source, and bringing more detail to particular areas, particularly regarding carers. The advent of national eligibility criteria will usher in a major change to community care provision, finally providing a uniform standard of social care across the country, and also putting an end to some of the more concerning wholesale cuts in social care in particular areas. Overall the administrative burden on local authority social services departments should increase to a very significant degree.

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SPECIAL FOCUS: FORMER RELEVANT CHILDRENR (GE) v Bedford BC [2013] EWHC 2186 (Admin)

Local Government Ombudsman complaint no. 12 001 464 against Kent CC

R (Kebede) v Newcastle CC [2013] EWCA 960 Civ

ISSUE: Former relevant children are those over the age of 18 who, as children, were children in need looked after by their local authority under s.20 of the Children Act 1989. It is recognised that as a group they generally have poorer life chances and, as such, local authorities are required by statute to provide them with a range of continuing services after they reach the age of 18. In the three cases below, we consider (1) the circumstances in which a child who ought to have been treated as a child in need, but was not, can nevertheless be treated as a former relevant child; and (2) whether local authorities are required to pay the university tuition fees of former relevant children. This second point has become all the more significant since the advent of top-up fees, as in each case tens of thousands of pounds may be at stake.

R (GE) v Bedford BC [2013] EWHC 2186 (Admin)

We considered the ex tempore decision in our June edition. A written judgment has since been handed down.

FACTS: The claimant was an immigrant who was age-assessed as being an adult, so she did not receive services under the Children Act 1989. She accepted that by the time of the hearing she had reached the age of 18 and so at most could be treated as a former relevant child. The claimant challenged her age assessment in judicial review proceedings in which she sought to establish that (i) she had in fact been a child at the time of the age assessments and thus entitled to services under the Children Act 1989; and that (ii) the duties owed to a former relevant child are owed not only to a person who in fact received services during her minority, but also to someone who ought to have received such services.

JUDGMENT: The judge held that both the scheme and the wording of the Children Act 1989 demonstrated that a person was not a former relevant child unless they had actually received services from their local authority. It was thus unnecessary to review the claimant’s age

assessment, as nothing turned on it – either way the claimant had received no services and could not qualify as a former relevant child.

In order to sustain this overall conclusion, the court also required to confront a line of authority in which it has been held that an LA should be deemed to have provided support under s.20 CA 1989 where there is a direct causal nexus between the LA’s conduct and any accommodation actually received, e.g. under s.4 of NASS. The court was constrained to gloss that line of authority in a way which is neither entirely convincing nor easy to understand

COMMENT: It is now abundantly clear that, as far as the courts are concerned, one must have received services as a child in need in order to qualify as a former relevant child. A very interesting side-feature of this case, however, is the gloss it places on the question of the circumstances in which a causal nexus between the action of a local authority and accommodation provided by SSHD will be made out. Following the earlier line of authority, it might have been thought that the nexus was made out whenever a local authority wrongly assessed a child as an adult and referred him to UKBA to be accommodated by them. GE raises the strong possibility that that approach is wrong.

Local Government Ombudsman complaint no. 12 001 464 against Kent CC

FACTS: The complainant was an 18 year old who had sofa-surfed since the age of 16. He had some contact with social services, but they never carried out an assessment of his needs. Rather, they regarded his sole need as housing and referred him to the housing authority. A series of housing placements broke down as the complainant was unable to juggle budgeting, housing, college, and independent living. Matters came to a head when he turned 18: not having been a child in need he was not regarded as having a priority need for housing and therefore could not be offered permanent accommodation. The complainant complained to the LGO.

JUGDMENT: The LGO held that the complainant had clearly been a child in need. The LA ought to have treated him as such, and put in place the range of support that is associated with that status. He had had welfare and health needs that went over and above his housing need and he would have benefited from the support. He ought to have been accommodated under s.20 CA 1989, and had he

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have been then he would have been a looked after child. The LGO recommended the LA pay £3,000 for the historic loss of welfare benefits, and that the complainant be treated as a leaving care child with the associated services.

COMMENT: This case stands in stark contrast with the court’s strict approach in GE. The LA was ordered to treat an individual as a leaving care child even though (albeit wrongly) he had never been assessed as being a child in need. Admittedly, a court might have found that there was a “causal nexus” in the present case between the LA’s conduct and the complainant’s accommodation, but the LGO did not pursue this line of thought at all. Rather, the LGO ordered that the complainant be treated as a leaving care child simply because of the injustice he had suffered. It is also to be noted that the LGO was able to delve back into decisions made many more than 3 months previously. This is a clear demonstration of the increased flexibility of the LGO over the Administrative Court.

R (Kebede) v Newcastle CC [2013] EWCA 960 Civ

In our April edition, we covered the first instance decision on this case about local authority funding of university places for former relevant children.

FACTS: The claimants were Ethiopian nationals with discretionary leave to remain until November 2014. Their immigration status meant not only that they were ineligible for central government funding for their tuition fees, but also that their tuition fees would be higher than that of UK citizens.

Section 24B(2) of the Children Act 1989 requires a local authority to make a grant to a former relevant child “to enable him to meet expenses connected with his education or training”. The claimants claimed that this included funding for a place at university. The local authority argued that it was entitled to take its resources into account in deciding whether to make such a grant and that, given its limited resources, it would not make such a grant. The claimants were successful at first instance; the local authority appealed.

DECISION: The Court of Appeal upheld the judgment below and found that as a matter of statutory construction s.24B(2) created a duty, not a power, to meet expenses connected with a former relevant child’s education or training and that, as such, the LA’s resources were irrelevant.

Of perhaps greater interest are the Court’s comments on the assessment of whether a child has an educational need to attend university. First, the Court rejected the claimants’ submission that their immigration status was not a relevant consideration. Their leave to remain would expire one year into their respective courses and it was manifestly relevant to ask whether they had an educational need for a course they could not complete. Second, the Court observed that what is an educational need must be assessed in the educational context. Education was not usually needed in order to survive, but it may well be ‘needed’ to obtain a necessary qualification for the work to which a person is suited.

COMMENT: Although the claimants in this case successfully argued that the local authority had a duty rather than a power to meet the expenses of their education or training, the Court of Appeal has considerably softened the blow by giving LAs considerable freedom in assessing whether former relevant children have a particular educational need such as a need for a university place. That freedom is limited, however: the educational need must be assessed in the educational context. Some former relevant children will have a need for expensive university tuition for their own educational development, even if they would survive without it. Local authorities should therefore carry out individualised assessments of the educational needs of each former relevant child.

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Assessments & planning for prisoners nearing releaseThere has been a spate of recent litigation involving prisoners challenging failure to assess and provide for their community care needs. This follows last year’s reported decision of R (NM) v LB Islington [2012] EWHC 414 (Admin). This year there have been a number of similar claims, including R (R) v LB Tower Hamlets (Admin Court 18 July 2013, Lawtel ref AC9601684) and R (Hall) v Secretary of State and others C0/7083/2013.

The issues in these cases are generally as follows. The claimant is an indeterminate sentence prisoner who has served the tariff part of his sentence and is then detained purely for the purposes of public protection. He will only be released on licence if the Parole Board decide that his risk in the community is sufficiently manageable. The claimant wants the local authority (there may be a dispute as to which local authority is responsible) to conduct a s.47 assessment, determine a care support plan to facilitate his return to the community and/or agree a particular expensive form of placement such as an intensive therapeutic residential care placement.

The local authority’s response may be any of the following: that they are not the correct authority; that the time for an assessment has not arisen yet as the person is in prison and his release is not sufficiently imminent; that it should be the Probation Service who is responsible for his oversight on release into the community; that normal local authority housing is sufficient; and that the expensive intensive therapeutic residential care placement is not necessary and will not be provided.

The litigation is given urgency by the fact that the Parole Board indicate release into the community is a realistic possibility only if there is accommodation and some support in place for the claimant on release. The Parole Board usually ask the local authority to set out in advance its plan for the claimant’s release, or ask for confirmation that the local authority has agreed to fund the expensive residential placement. The claimant claims that the absence of a s.47 assessment or failure to determine a support plan or agree to fund the placement is responsible for the claimant being detained unnecessarily, in breach of Article 5.

The NM v Islington case established that local authorities may be under a duty to complete a s.47 assessment for such prisoners if their release was sufficiently imminent. In the Regan v Tower Hamlets case the court largely rejected the claim and in particular rejected the attempt to force the local authority to fund the expensive placement and to fund education pursuant to leaving care duties, but did recognise that a s.47 assessment needed to be completed in a timely manner, and did require the local authority to at least convey its funding decision to the Parole Board ahead of the Board’s hearing the following week. The Hall case has not been heard yet, but will test the extent to which claimants in such cases can obtain relief for allegedly undue delays in the local authority assessment and decision-making process.

There are many issues still to be worked through in this developing line of litigation. On assessments, there is no absolutely clear line delineating when a person still in prison should have his or her community care needs assessed and a plan made for his accommodation and support on release. As regards provision, it is clear that local authorities only need fund provision which is necessary to meet assessed needs, in accordance with their eligibility criteria. This will very often be far less than that which the claimant feels is necessary to support him or her for life after prison.

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No recourse to public funds – failure to disclose informationN v LB Newham [2013] EWHC 2475 (Admin)

FACTS: A Nigerian family of two young children and their parents were immigration overstayers with an outstanding application for leave to remain but no recourse to public funds. The family had a support network in the UK but claimed that they could no longer rely upon it. The LA carried out a core assessment of the children’s needs, but the parents refused to disclose information as to their support network. Its conclusion was that the parents would be able to provide for their children by calling on their support network. The claimants challenged the failure of both authorities to provide them with support and accommodation.

JUDGMENT: The judge held that since the parents refused to provide any details of their support network, it was impossible for Newham to ascertain whether it had been exhausted as claimed. Newham could not be criticised for failing to carry

out a fuller investigation when the parents had failed to cooperate with its efforts to do so. Given their parents’ failure to cooperate, it was not surprising that Newham concluded that the children were not in need.

COMMENT: It is not uncommon for NRPF families who are seeking support to be reluctant to disclose information as to their means and support network. An identical issue arose in R (MN) v Hackney LB, which featured in our first edition. We repeat the comments we made there, where we doubted that it was open to an LA to decline to reach a conclusion on whether a child is in need – and thus purport to absolve itself of any duty – on the basis that their parents had provided it with insufficient information as to their support network. What an LA ought to do is to actually make a finding on the basis of the totality of the evidence before it, which will then be subject to review on rationality grounds. That is what the LA in N v Newham appears to have done. Even when faced with non-disclosure of information, therefore, LAs should still aim to make actual findings as to whether or not children are children in need.

NRPF SPECIAL FOCUS: EXERCISE OF TREATY RIGHTS BY EU NATIONALSOne issue which causes significant confusion is the extent to which non-UK European (EEA or EU) nationals are eligible to receive social care and accommodation. There have been a number of recent developments in other areas, including housing and employment, which provide some assistance in clarifying the bounds of local authorities social care obligation to non-UK EC and EEA nationals. To begin though, it is necessary to know the legislative framework in which the issue arises.

Schedule 3 of the Nationality, Immigration and Asylum Act 2002 has effect pursuant to s.54 of that Act. Under this Schedule, certain types of persons subject to immigration control may not receive support from local authorities pursuant to listed statutory provisions. Local authorities are barred from supporting such people pursuant to the main community care provisions, including ss.21, 29 of the National Assistance Act 1948, ss.17, 23C-24B of the Children Act 1989 and ss.188 and 204 of the Housing Act 1996.

Paragraph 3 of the Schedule provides exceptions where it is necessary to provide assistance in order to prevent an infringement of (a) the person’s ECHR rights, and (b) an exercise of EU Treaty rights.

Article 18 of the EC Treaty provides for a right of free movement within the EU. Article 45 TFEU provides for freedom of movement for “workers” within the EU.

The Immigration (EEA) Regulations 2006 (SI 2006/1003) provide for categories of persons who are still eligible for assistance despite being from abroad. By Regulation 6(1), a “worker” is a qualified person. By Reg 6(2), a person who is no longer working shall not cease to be treated as a worker for this purpose if he is temporarily

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unable to work as the result of an illness or accident. By Reg 4(1)(a) “worker” means a worker within the meaning of Article 45 TFEU.

In Konodyba v RB Kensington and Chelsea [2012] EWCA Civ 982 the Court of Appeal held that a local authority had acted lawfully in determining that a Polish national who last held a job in 2006 and claimed to have been self-employed for periods afterwards was not still actively engaged with the labour market as, on the facts of that case, her inability to work was more than temporary. The correct test was whether there were realistic prospects of the person being able to return to work and therefore remaining engaged with the labour market. As there was not a realistic prospect of her returning to work within a reasonable time, she was not a “worker” and not exercising Treaty rights, thus not entitled to local authority support (the case was a housing case, concerning the 1996 Act).

Similarly in Samin v City of Westminster [2012] EWCA Civ 1468 the Claimant had last worked in 2006 and had been in receipt of state benefits since then. The Court of Appeal held that the local authority officer had been entitled to conclude that the appellant had not been temporarily unable to work (ie the inability was more than temporary). He was in poor health, suffering clinical depression due to traumatic experiences in the army, had attempted suicide and was on medication. He had scarcely worked at all in the time that he had been in the UK, his disabling illness had plainly been of very long standing and the prospect of it changing could only have been regarded as unrealistic. Thus he was not exercising Treaty rights and not entitled to local authority support (again this was a housing case, concerning the 1996 Act).

However in Saint Prix v Secretary of State for Work and Pensions [2013] 1 All ER 752 the Supreme Court made a reference to the ECJ to obtain guidance as to the period of time out of work or job-seeking that was compatible with sill being regarded as a “worker”; there in the context of a woman who gave up work because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth.

The general message of these cases is that if a person’s illness is of short duration then it is compatible with a temporary absence from the labour market and they may still be exercising Treaty rights, thus enabling them to utilise the paragraph 3 exception to Schedule 3 of the Nationality, Immigration and Asylum Act 2002. However a lengthy absence from work and/or serious illness may lead the court to say that the inability to work is more than temporary, thus they are not a “worker” and not exercising EU Treaty rights.

Finally, there may be some tension between a claimant’s case regarding their community care needs (which usually seeks to emphasise what the claimant in unable to do due to illness or disability) and their claim to be exempt from Schedule 3 as they are exercising EU Treaty rights (which seek to establish that their absence is temporary and they are still involved in the labour market).

Continuing healthcareR (Afework) v LB Camden [2013] EWHC 1637

ISSUE: Section 21 of the National Assistance Act 1948 and s.2 of the Chronically Sick and Disabled Persons Act require LAs to provide residential accommodation to those who by reason of disability are in need of care and attention. LAs can impose charges for such provision. S.117 of the Mental Health Act 1983 provides that NHS trusts and LAs have a joint responsibility to provide after-care services to those released from detention under the Act, free of charge. The different charging regimes

can lead to disputes as to whether a person is accommodated under s.21 NAA 1948 or under s.117 MHA 1983.

FACTS: The Claimant had a history of mental illness, and separately had also suffered brain injury as a result of a violent assault. He was detained and then discharged from detention under MHA 1983, whereupon he was provided with accommodation. He claimed that the accommodation was provided as an after-care service under s.117 and that they were therefore free of charge. The LA contended that the accommodation was not provided in connection with any mental illness, and was thus not an after-care service.

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JUDGMENT: The Court considered the statutory framework and the case law and held that there were no circumstances in which a mere roof over the head without more could come within the concept of after-care services. Section 117 would only be engaged vis-à-vis accommodation if (i) the need for accommodation is a direct result of the reason that the ex-patient was detained in the first place; (ii) the need is for enhanced specialized accommodation to meet needs directly arising from the original condition; and (iii) the ex-patient is being placed in the accommodation on an involuntary basis, in the sense of being incapacitated. On the facts of the case before him,

the accommodation was pure accommodation provided in order to meet needs arising out of the claimant’s brain injury, and not to meet needs connected with his detention under the MHA 1983.

COMMENT: Placements following discharge from detention under MHA 1983 can be extremely expensive. Disputes often arise between service users and NHS trusts/LAs, or between NHS trusts and LAs themselves, as to who should fund such provision. Afework draws a very clear line in the sand which ought to be of assistance to all parties in determining where the weight of responsibility lies.

Legal aid cuts and JR reformOn 6 September 2013, Chris Grayling published his response to the legal aid consultation: Transforming Legal Aid: Next Steps. It covers a wide range of topics, and opens some to further consultation. Three will be of particular relevance to our readers.

Residency Test: Secondary legislation due in early 2014 will restrict legal aid to those who have been lawfully present in the UK for the last 12 months. The reform will be tempered by a number of small-scale exceptions, as well as exceptions for cases where the individual is particularly vulnerable or where it relates to the protection of children. The reform is likely to have a large impact on cases brought by those with no recourse to public funds, amongst others.

Payment for permission work: the most serious proposal for public lawyers is the removal from scope of JR work that does not proceed beyond the permission stage. The concern is that the proposal will have a chilling effect on even meritorious claims. The government now intends to consult further on introducing a discretionary payment in certain cases which conclude prior to a permission decision without a costs order or agreement.

Merits test: until now, legal aid has been available for cases with borderline prospects of success and up. The threshold is now being raised to cases with higher than a 50% chance of success. The change will be introduced by secondary legislation in late 2013.

In September 2013, Chris Grayling also published Judicial Review: proposals for further reform, which builds on changes introduced earlier in the year. The new consultation proposes narrowing rules on standing; increasing the court’s discretion to refuse permission for judicial review where a procedural flaw was likely to have made no difference to the outcome of the decision; creating a separate procedure for challenges based on breach of the public sector equality duty; and largely removing legal aid funding for work done at the permission stage.

The consultation is very critical of judicial review generally. It suggests it is often used as a delaying tactic by campaigning groups; that it aims at procedural flaws which would have made no difference to the outcome; and that it gets in the way of economic growth. We suggest this rather misses the point, that judicial review is a vital mechanism precisely intended to ensure due process. It is too important to be limited for the sake of political expediency.

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Care home funding challengesR (South Tyneside Care Home Owners Association) v South Tyneside Council [2013] EWHC 1827 Admin

The seemingly endless line of care home funding challenges has not run out of steam just yet. This case was one of four cases brought by providers associations in the North East of England, which were originally linked and planned to be heard together. This did not eventuate and the other cases against Newcastle, Redcar and Cleveland and Northumberland Councils were all decided several months ago, leaving the South Tyneside case as the last.

The South Tyneside challenge was brought along orthodox Forrest Care Homes lines, that is it involved a close analysis of the specific inputs into the cost of care, and a critique of the treatment of these inputs in the Council’s decision-making.

In particular, the claimant provider association alleged (1) that the Council had not specific consideration to the cost of capital as part of having regard to the cost of care, (2) that the arithmetic exercise undertaken by the Council was flawed due to failure to consider return on capital, (3) that the Council was wrong to focus on the overall level of profits made by homes (which also catered for self-funders) rather than the actual costs of providing care, and (4) that the Council failed to take into account the higher cost of providing care to EMI residents, failed to consult lawfully by failing to disclose reasonable details of its methodology and analysis of financial information, made a number of factual errors and failed to complete an adequate equalities impact assessment.

The case was heard by a Deputy Judge, who upheld the grounds of challenge. The Deputy Judge emphasised the importance of the cost of capital as part of an estimation of a care home’s costs. The Deputy Judge distinguished this case from the Northumberland case, in which (the Deputy Judge said) the Council had relied on judgment and experience rather than arithmetic calculation.

COMMENT: The Deputy Judge in this case undertook an extremely detailed investigation into the fee-setting decision. It is hard to see this as anything other than the Deputy Judge wrongly assuming a merits jurisdiction. This unfortunately follows a pattern in this field of litigation, where cases decided

by Deputy Judge (such as the Newcastle case, Redcar and Cleveland case and this one) tend to become thinly-veiled merits appeals, whereas the cases decided by full High Court judges (such as Singh J’s decision in the first South West Care Homes case, and Supperstone J’s decision in the Northumberland case) are decided, as they should be, on the basis of the court’s supervisory (judicial review) jurisdiction. In the former group of cases the claimants were successful. In the latter group of cases, the claims largely failed.

Public sector equality dutyBreach of the public sector equality duty (“PSED”) has become a key ground for judicial review, particularly in high-level challenges to cuts in public services, some of which we consider in this edition of the newsletter. Public bodies have responded by producing increasingly detailed equality impact assessments (EIAs). Recent experience is that courts are now more reluctant to micro-manage EIAs.

An Independent Steering Group established by the Home Department has published a strongly critical review of the PSED. The report recommends limits on the operation of the PSED, including counseling against ‘gold-plated’ EIAs, which it regards as burdensome and unhelpful. But of course it is for the courts, not the government, to determine the scope of this statutory duty. The report’s recommendations have no legal effect and where they depart from established legal principle they should be treated with extreme caution. EIAs must continue to be as detailed as is required in the circumstances of the decision being taken, even where that requires ‘gold-plating’.

The report concedes that it is too early fully to evaluate the costs and benefits of the PSED, but recommends a Departmental review of the PSED within three years. The clear implication is that the government does not favour the PSED. The possibility has at least been raised that the PSED will be reformed or repealed in the coming years.

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LA age assessment decisions and UKBAR (HXT) v SSHD [2013] EWHC 1962 (QB)

CONTEXT: The Secretary of State for the Home department (SSHD) has the power to detain those subject to deportation, but has a policy of not detaining those aged under 18. She also has a policy that, when determining whether a person is under 18, she will generally rely on a Merton-compliant age assessment carried out by a local authority (LA). A number of recent cases have challenged the SSHD’s reliance on flawed LA age assessments.

FACTS: The claimant was assessed as an adult by his LA, and referred to UKBA. UKBA, relying on the LA’s age assessment, detained him pending deportation. The LA then reassessed the claimant’s age and found him to be a child. The claimant argued that his detention was unlawful as it was in breach of the SSHD’s policy on the detention of minors, and claimed damages for false imprisonment.

JUDGMENT: The Court held that the UKBA’s policy required it to apply its mind to the LA’s age assessment and form a reasonable view as to whether the age assessment was Merton-compliant. In this case UKBA had adduced no evidence as to whether it had done this, and the court held that UKBA was unable to prove on a balance of probabilities that it had even read, let alone scrutinised, the age assessment. The absence of such scrutiny went to the heart of UKBA’s policy on detention of minors, and thus vitiated the lawfulness of the detention. The Court also held that the age assessment had not been Merton-compliant. The failure to scrutinise the age assessment therefore made a material difference to the decision to detain and the claimant was entitled to compensatory rather than just nominal damages.

COMMENT: It is extremely difficult to know whether and if so how this will work in practice. UKBA does not have the expertise to perform the role the court envisages for it. The issue as to whether or not a LA age assessment was Merton compliant may, and very often does, turn on disputed facts. It is unclear what UKBA is to do with such factual disputes. In our experience UKBA has neither the will nor the skill to undertake this role of checking LA age assessments.

CostsR(TH) v East Sussex CC [2013] EWCA Civ 1027

FACTS: The Claimant disputed his age assessment. Following the grant of permission, the local authority offered to carry out a new age assessment. The Claimant refused the offer as he insisted on the assessment being carried out by an independent social worker together with a social worker employed by the local authority. Six months later the local authority relented and appointed an independent social worker to carry out the fresh age assessment. Upon reassessment, both social workers accepted the claimant’s claimed age. The trial judge allowed the claimant’s costs up to the date of the first offer and made no order as to costs thereafter. The Claimant appealed on grounds that he had obtained all the relief he was seeking and should thus receive all his costs: R(M) v Croydon LBC [2012] EWCA Civ 595.

JUDGMENT: The debate focussed on whether the claimant ought to have accepted the local authority’s first offer and, in particular, on whether there was any material difference between the two offers. Jackson LJ, giving the robust judgment of the Court, was strongly of the view that the claimant ought to have accepted the earlier offer. He observed that there was a “high duty on both parties to public law litigation to take advantage of any reasonable and sensible opportunity for settlement which presents itself.” There was no material difference between the two offers: all social workers could be expected to give a professional, independent opinion. Indeed, that had occurred in the present case where the independent and the LA social workers had accepted the Claimant’s claimed age.

COMMENT: The major lesson of TH (Iran) is that claimants will not be permitted to hold out for gold-plated relief, but will be expected to accept reasonable offers of settlement in order to avoid the running up of costs. It remains to be seen whether the “high duty” on both parties to accept reasonable offers of settlement will significantly limit the rule in R(M) v Croydon LBC that claimants should receive their entire costs if they obtain all the relief they are seeking. But at the very least, the Court’s increased expectations with regard to settlement will require both claimants and defendants to give more thought to the terms on which offers are made and accepted/refused.

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Up and coming …

Benefits cap challenge – The appeal against the dismissal of the judicial review challenge to the benefits cap has been granted permission and is coming up for hearing shortly.

EU Treaty rights – There are two judicial review claims coming up to hearing in the North West concerning the eligibility to social care support of foreign national Zambrano carers. And as noted earlier in this Newsletter, the case of Saint Prix v Secretary of State for Work and Pensions is pending before the ECJ, regarding the length of time off work which is compatible with a person retaining the status of “worker”.

Financial eligibility and P.I. trust funds – Permission has been granted and a substantive hearing is pending on a challenge to a local authority’s policy which takes into account a person’s personal injury trust fund capital when assessing their financial eligibility for care.

Social care on hospital admissions – There is a judicial review pending against the Yorkshire Hospital Trust’s policy of refusing to fund and provide 1:1 care needed by a disabled person when regularly admitted onto a hospital ward.

Our next Newsletter will be out in November. Please email us with any judgments or other news items which you think should be included. If you do not wish to receive this Newsletter in the future please contact marketing@39essex.com.

Jonathan Auburnjonathan.auburn@39essex.com

Benjamin Tankelbenjamin.tankel@39essex.com

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Jonathan Auburn jonathan.auburn@39essex.com Jonathan has a large practice in all areas of community care law (adults and children) for both local authorities and individuals. He has acted in the most important recent cases, including R (KM) v Cambridgeshire CC, Supreme Court, 2012, and Westminster CC v SL, Supreme Court, 2013. Jonathan is rated by Chambers and Partners as the highest ranked junior for community care work. He is also highly ranked for Administrative & Public Law, Local Government Law and Education Law. Jonathan has recently acted in reported cases on care home funding disputes, age assessment disputes, mental capacity cases and SEN cases. He is a co-author of OUP’s new practitioner’s text Judicial Review: Principles and Procedure (2013) and edits the White Book. To view full CV click here.

Benjamin Tankelbenjamin.tankel@39essex.com Benjamin has a practice encompassing all areas of social care and community care law. He appeared with Jonathan Auburn in the Supreme Court in R(KM) v Cambridgeshire CC in 2012, and makes frequent appearances in the High Court in his own right. He handles a large number of challenges for both claimants and local authorities, and is particularly adept at urgent judicial review work. Benjamin is a co-author of Anti-Social Behaviour Law (Jordans), the Education title of Atkins’ Court Forms, and the Local Government Encyclopaedia. To view full CV click here.

CONTRIBUTORS

David Barnes Chief Executive and Director of Clerking Peter Campbell Practice Manager david.barnes@39essex.com peter.campbell@39essex.com

Sheraton Doyle Practice Manager Daniel Perry Practice Manager sheraton.doyle@39essex.com daniel.perry@39essex.com

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