What judicial review has done for social care rights – and how this will change under the Care Act 2014

By Belinda Schwehr, Care and Health Law

This week’s Care Bill focus is on appeal rights, what may become of judicial review in the sector, if such rights are eventually introduced – and the impact of this change on the rights of people with disabilities to hold councils to account.

In the pre-legislative scrutiny of the bill, the joint select committee predicted a fair amount of middle-class dissent could be anticipated to arise, given the increase in the number of people being assessed because of the Dilnot provisions to introduce a capped cost scheme, and a consequent rise in disputes.

The committee therefore called on the government to set up a care and support tribunal to provide redress and complaints resolution.

The government responded to the committee by saying that a tribunal was likely to be an expensive response that slowed down the process of resolving complaints.

But in last year’s consultation on the bill’s funding reforms, it pledged to look at existing complaints arrangements to assess whether there were effective means of challenging local authority decisions and sufficient independence in the process. This would include assessing whether it would be beneficial to introduce a process “that provides independent merit reviews of decisions made by local authorities” – possibly on the model of the school admissions appeals system. Under this, cases are heard by an independent panel, consider the merits of decisions and provide binding decisions that can only be overturned by a court.

Care Bill appeal rights clause

And lo, a clause has now been added to the Care Bill, so that appeals can be introduced through regulations. The scope and structure of the potential appeal system has been so loosely shaded in, at this point, that it is impossible to tell what may emerge. The bill merely says that future regulations may provide for this, that and the other, but the thinking behind the scheme is opaque.

Lawyers who act for people who depend on adult social care will have very mixed feelings about appeals of this nature. On the one hand, it is surreal that in modern England, in an era of cuts, the only people who get their packages increased at the moment are those who know they can ask for a reconsideration, and make cogent noises about challenging the legality of the thinking, judgements and sums behind the offer.

So, the government’s amendment to introduce appeal rights looks like a generous and respectful step to take. On the other hand, if an appeal against local decision-making is brought in, it will be no mere complaint, leading to a recommendation back to the council, but an appeal on the council’s understanding of the law, as well as a means of overturning the professional’s judgement.

It will be that appeal body’s decision that would then be challengeable by way of judicial review, not the original council’s decision or action, because the appeal will constitute an alternative, adequate remedy, and the Administrative Court’s permission for judicial review proceedings is never granted until such remedies have been exhausted.

Reduced accountability 

So the addition of a right of appeal would actually reduce councils’ accountability in social care decision-making! Furthermore, there is nothing to go on from the Department of Health, as yet, about funding, the spread across the country, the membership of these bodies, or whether they would even need a legally experienced chair.

If we are about to see the quiet abolition of judicial review from the field, it may be timely to remember the contribution of judicial review to rights within adults’ social care. What follows is a selection of the most important cases – listed by the council decisions that have been challenged by judicial review –  and my own views as to whether the law is likely to be the same, after the Care Bill comes in, as it is now.

Point-blank refusals of assessment and review

Case: R v Bristol City Council ex p Penfold (1998)

The Care Bill replicates a duty to assess (section 9), but provides that lack of consent on the part of the person with apparent needs is a legal reason for not proceeding, unless the council is concerned about capacity or abuse or neglect (section 11). A right to request a review has been included in the bill, too (section 27).

Leaving out whole swathes of potential need from assessment questionnaires when considering eligibility

Case: R v Haringey LBC ex p Norton (1997)

The bill sets out what must be considered at the stage of identifying needs, and the types of need that can be eligible will be set out in regulations. But the judgement about whether the deficit leaves the person in significant risk – the test of eligibility – allows for massive wriggle-room or cynical top-down management of the professionals’ approach to this issue.

Cuts to care plans without reassessment

Case: R v Gloucestershire CC ex p RADAR (1997)

There is nothing in the bill that expressly provides for the continuation of this principle, but it is inconceivable that it would not be carried over, if litigation were needed to establish it. The same case held that a person is entitled to have their needs met, as specified, in the plan – even if the council has run out of social services money – unless and until the person is lawfully reassessed as no longer eligible for a service or funding. On that point, the bill’s provisions about what the care plan must specify (section 25), can only be helpful. But the requirement to reassess is not going to be triggered merely by a change in the manner of the council’s meeting of the needs, so long as the needs are not themselves regarded as having changed, and this is a small incursion into prior legal principle, which will have to be watched.

Changes to the plan without proper consultation of incapacitated person’s best interests consultees

Case: R (W) v LB Croydon (2011)

The Care Bill lays down that such people must be ‘involved’ (section 27) and it is to be hoped that the message will be put over loudly and clearly in the guidance.

Changes to plan on consideration only of cost savings

Case: R on the application of Alloway v Bromley LBC (2004)

This is unlawful because of the exclusion of other relevant considerations, even though a council has always been able to offer the cheaper of two adequate alternative means of meeting need. I am sure that the general public law principle that all relevant considerations, such as choice and human rights, should be taken into account will survive the repeal of the old law and the introduction of the Care Act. However, the definition of a personal budget in the bill (section 26) makes it possible for the council to change its mind about the amount to be provided, based on a change of cost to it of meeting the person’s needs – though not without re-assessing the client, it is to be hoped.

Completely unexplained savage cuts to care package after reassessment

Case: R v Birmingham City Council ex parte Killigrew (1999)

The public law principle that decisions must be rational and evidence based, should lead to the same outcome, after the bill. The bill’s requirement to give written reasons why a person is found to be ineligible in relation to an aspect of their situation (section 24) will probably help avoid litigation on this point.

Unfeasibly greater expectations of carers regardless of ability 

The bill’s principle that carers must be willing and able (section 10), and are entitled to have their eligible needs met, too, as a duty (section 20), should help protect against this tendency in the local authority world.

Changing the eligibility threshold non-compliantly with guidance or without proper consultation

Cases: R (JM and NT) v Isle of Wight Council (2011) and R (W) v Birmingham City Council (2011)

The national minimum threshold brought in under the Care Bill will help, but it will still have to be understood and interpreted, and councils will be given a margin of appreciation here. The Equality Act jurisprudence, including the Isle of Wight and Birmingham cases, will at least mean that consultation about local changes will have to be done properly.

System slow-down, constant re-referrals to panel and the use of waiting lists 

Cases: R v Sutton LBC ex p Tucker (1998); R. v Sefton MBC Ex p. Help the Aged (1997); Arthur MacGregor v South Lanarkshire Council.

The current guidance on eligibility (Prioritising need in the context of Putting People First, 2010) states that councils should provide some support promptly after a finding of eligibility, at least on an interim basis until issues have been resolved. I think that the Care Bill’s drafting lets clients down here – the mere eligibility of needs will not be what triggers the duty to meet needs; the unmet need will not be decided upon until after support planning, so there is great scope here for long, drawn-out negotiations about support planning and carers’ input, and no meeting of need in the meantime, because the plan won’t have been signed off. Guidance and the judicial notion of a delay being so unreasonable that no reasonable council could allow it are the only means, now, of laying down any ‘time’ targets to manage the risk of putting people at risk whilst consensus is negotiated for.

Resource allocation issues: systemic cuts and cost celings vs a rational needs-led amount

Cases: R v Haringey LBC ex p Norton (1998) and R (Savva) v Kensington and Chelsea (2010)

The fact that an early ‘indicative’ allocation will no longer make much sense, since eligibility is going to be carer blind, will probably reduce reliance by councils on resource allocation systems; many are giving them up already.

But the bill’s definition of a personal budget (section 26) raises a very grave risk that councils will believe that they can plead ‘client choice’ for a person’s staying at home, on a budget merely of what it would have cost the council, if it had arranged care home care.

Whilst nothing in the bill allows councils to force care through someone’s front door if that is rejected with capacity, my view is that it does at least have to be offered, if it is believed to be needed, in professional terms, after a really well-informed and honest discussion with the person, to constitute a lawful discharge of the duty in the bill.

So saying ‘but she accepted the offer, in order to stay at home’ will not feel good for the sector when a person, albeit with undoubted capacity, suffers harm because the council did not offer a budget that was actually enough to meet the needs known to be likely to arise in the person’s own home; or the person was offered one that was sufficient but which was then refused, on account of fear of the charge for the service.

Requirements for the client to move house to make services cheaper or easier to manage as a precondition of getting anything 

There is no provision in the bill for permitting a council to regard itself as not owing a duty, just because a client won’t voluntarily move house into say, shared supported living or extra care housing, so as to enable the council to spend less in meeting their needs. But there has never been a judicial review case about it – only a Court of Protection decision that it would be in the best interests of a young man to be re-housed, in supported living, away from his mother – and incapacity and best interests were the focus there, not the legality of making an offer dependent on a move.

Cuts to core underlying services in supported living or extra care, without reassessment of heightened eligible unmet need

A change in circumstances or a request to be reassessed would be sufficient under the Care Bill to trigger reassessment, so this should no longer happen.

Refusal of particular items, services, arrangements, or funds without any rational basis or written reasons 

Cases: R (Savva) v Kensington and Chelsea (2010) and R (KM) v Cambridgeshire CC 2012

The bill requires written reasons for findings of non-eligibility, and a copy of the care plan (section 24), but no reasons at all, for why £x is enough, or x hours will be enough – to meet the eligible unmet needs, adequately. No parties’ proposed amendments focused on this lack of procedural protection – so we do need another case about this before judicial review is abolished! This is a retrograde step.

Messing with ordinary residence rules when a person in need moves of their own capacitated volition to another area 

Case: R (Buckinghamshire CC) v Kingston 

The bill makes provision for ensuring that leavers are assessed by the new authority before they arrive, on pain of the abandoned authority’s original assessment determining the second one’s duty of provision until its own assessment has been completed. But it also provides for continuing the ordinary residence responsibility of the old authority, based on the type of accommodation into which the move is to be made – confusing the situation once again. It is too soon to say whether that is going to cover all council facilitated moves into all supported living, or only some, as the regulations are not yet out.

Improper fee negotiations with providers, without consultation or transparent changes in the client’s care plan

Cases: R (Mavalon Care Ltd) v Pembrokeshire CC (2011); R (Sefton Care Associaton) v Sefton Council (2011); R (East Midlands Care Ltd) v Leicestershire CC (2011); R (South West Care Homes) v Devon CC (2012); R (Care North East Newcastle) v Newcastle City Council (2012)

Contracted care providers under the bill are not ‘partners’, owed a duty of council co-operation, but this important recent development in case law has gone some way to making up for the legal likelihood that the Competition Act does not apply to protect providers against abuse of a dominant position by public sector commissioners.

The duty on councils under the Care Bill to have regard to the sustainability of the market in their commissioning decisions (section 5) should help here, too, along with the duty on the Care Quality Commission to notify the relevant local authority in the event of likely provider failure (section 55).

But the impact of the Dilnot reforms, incentivising many more middle-class people to be assessed to get their care cap clock ticking and access the bulk-buying power of the council for lower-cost care, may have a far more fundamental effect on the private market, and destabilise care home viability. Fee trends are genuinely unpredictable.

Ignoring human rights and dignity with regard to assessment of need or determination of response

Case: R (McDonald) v Kensington and Chelsea (2010)

The concepts included in the duty to promote well-being in the bill (section 1)  should help: many of them are related to human rights, and dignity is specifically mentioned, although independence is not – ironically, after so many years of the personalisation agenda.