Legal Update: latest adult social care cases including learning disabilities and personalisation

Ed Mitchell (pictured) looks at some important recent adult services cases that have not been widely publicised.

Direct payments

R (G) v North Somerset Council (July 2011) was a pragmatic decision which recognised that sometimes councils have to move quickly to safeguard the public funds being used on direct payments.

Weekly direct payments of £5,500 and £3,500 were being made to purchase care services for two very disabled men. The payments were made to trusts whose trustees include the men’s family members. After an internal audit, the council suspected that the payments were being misspent. The council altered its payment arrangements. Pending further inquiries, the council began making the payments to an independent care broker. A claim for judicial review was made of the council’s decision. The High Court rejected the claim. The council had persuasive evidence of mismanagement of the direct payments. It had therefore been entitled to alter interim payment arrangements despite having done so without consulting the family members.

Meeting service users’ sexual needs

F v G (September 2011) was an Employment Appeal Tribunal decision which showed the need for staffing sensitivity in implementing policies to facilitate the sex lives of disabled people.

Following prompting by the Commission for Social Care Inspection, a residential college developed a policy on assisted masturbation for disabled male students. This involved staff helping to apply, and then take off, an appropriate aid. The procedure was carried out by volunteer staff. A non-volunteer was asked to wash a male student shortly after assisted masturbation. Subsequently, this staff member resigned and claimed ‘constructive dismissal’. The staff member’s claim succeeded before the employment tribunal. Her employer knew that she found the process repugnant and should have recognised that its policy of only involving volunteer staff ought to have been applied to post-event washing. The Employment Appeal Tribunal refused to allow the college to appeal against that finding.

Funding disputes – mental health

The High Court’s decision in R (Sunderland Council) v South Tyneside Council (July 2011) involved a woman from Sunderland who was initially an informal patient in a South Tyneside hospital.

She was then compulsorily admitted for treatment. Upon her discharge, she would be entitled to free aftercare services under s.117 of the Mental Health Act 1983. The s.117 funding authority is the one in whose area a patient resided before being ‘sectioned’.

Sunderland Council argued that the woman’s 10 weeks as an informal patient in South Tyneside meant she had begun to reside there. If correct, South Tyneside Council would have to fund services. The High Court rejected Sunderland’s argument. The woman’s informal admission was close to a compulsory admission because she would have been ‘sectioned’ if she tried to leave. She had not voluntarily adopted a residence in South Tyneside and so Sunderland Council was responsible for funding discharge services.

Related articles

More legal updates

What do you think? Join the debate on CareSpace

Keep up to date with the latest developments in social care Sign up to our daily and weekly emails