By Belinda Schwehr
The Care Act is beginning to generate case law of real use to people with disabilities. In CP v NE Lincolnshire (Court of Appeal, 3 October, 2019) public law proceedings challenged the sufficiency of the budget for a young person, CP, who has complex disabilities and requires round-the-clock care.
The judgment underlined the illegality of opaque care plans – and opened the door to repayment of money expended in lieu of a lawful budget – at least where that is known to have met needs.
This is bound to have a litigation impact where ‘assets and strengths-based’ care plans have been adopted, especially where there is actual unwillingness on the part of a third party to meet needs informally, or the third party’s work or expenditure on meeting the assessed needs has been known about all the time.
‘Visceral resistance to funding package’
In this case, the council had asserted that the day provision, Fix n’Kiks, that CP had benefited from for some years, was provided ‘for free’ by her father, JP, from choice, because he had founded the charity, Disability Active, that operated the service. The council was described as having ‘a visceral resistance’ to funding the package because they saw JP as profiting. Yet, it was a regulated and arm’s length charity that could not conceivably be seen to offer the founder’s daughter a place for free. And importantly, the council had provided nothing else in lieu, and paid for the transport and the support worker to be there with CP.
Eventually, everyone accepted that the service counted as education for the purposes of CP’s education, health and care plan (EHCP), and what the council should pay for it, going forwards. That added about £200 a week to the overall combined budget. However, most of the earlier social care plans had failed to state a personal budget at all, and none had set out any breakdown of the figure being offered at any given point; so, despite agreement on other fronts, the case continued to a hearing.
The High Court accepted that there should be no payment ordered for the early period of unpaid placement fees, without really explaining why. Usefully, however, the section 26 Care Act duty to specify the personal budget for the adult was held, by the High Court, to require a transparent figure to identify how the person’s needs could actually be met by various elements within it, such that no mistaken assumptions about free informal care being willingly provided by relatives could ever be made. The High Court judgment stated:
“It is also clear that an adult’s family carer is under no obligation to meet the eligible needs of the adult and necessarily any plan must be contingent on such care being withdrawn, or the local authority being made aware that the carer is not in a position to cope.”
Breach of Care Act is unlawful
On appeal, the Court of Appeal went further. It held that if a council breaches the Care Act, then it is acting unlawfully, and that in this case, it had to pay back what it would otherwise have been obliged to pay towards the person’s care plan, if it had acted lawfully.
“A local authority’s statutory duty under s. 26 of the Care Act 2014 to provide a personal budget to meet a person’s care and support needs is fundamental to the operation of the care and support scheme which the Care Act 2014 underpins.
“In the present case, having found the Council in breach of its statutory duties, [the judge in the High Court] should have gone on to hold that the Council had acted unlawfully and, accordingly, was liable in principle to compensate CP in respect of any monetary shortfall, in accordance with normal public law principles of legal accountability of public bodies.”
Councils’ arguments dismissed
The council had tried every single argument at its theoretical disposal but the Court of Appeal dismissed all of them:
- This was just a community asset/voluntarily provided by the family/not the equivalent of social care. The court’s response: “If and in so far as the facilities were adjudged suitable for CP, there is no reason why Disability Active should not charge for their use, just as they would any other user.”
- The service was never commissioned by the council and not deemed to be of value (the council described it as “little more than empty rooms and a gym”). The court’s repsonse: “However, by June 2017, the Council was privately conceding that it was legally liable to pay for CP’s attendance at Fix n’Kiks (see Ms Mansfield’s email to colleagues referred to above). This was not surprising given, e.g., the report from Dr Heather Forknall (educational psychologist) and Dr Rob Ashdown (special schools expert) which made it clear that CP was benefiting educationally from her attendance at Fix n’Kiks.”
- There was a conflict of interest and that CP’s father was ‘the ‘real claimant’, using the proceedings inappropriately to profit from the claim’ since the charity was organised and controlled by him. The court’s response: “The claim is brought in the name of CP because it is her legal rights which have been breached and it is her legal entitlement to compensation from the council for failing to fulfil its statutory duty to provide fully for her care needs.”
- Alternative remedies to judicial review were available such as the adult social care complaints system a management review where a care and support plan cannot be agreed with the service user under paragraph 10.86 of the Care Act statutory guidance or a review of the plan under section 27. The court’s response: “CP has sought to enforce her legal rights by the various legal avenues open to her.”
- This was an inappropriate claim for damages for breach of statutory duty ie that this was a misconceived claim for damages to compensate CP for non-provision of funding. The court’s response: “[s]he is simply asserting an orthodox public law right to be paid monies due to her under the Care Act 2014 and which the Council has unlawfully failed or refused to pay.”
In conclusion, the Court of Appeal said: “The Council’s failure when drawing up CP’s support plan dated 11th April 2016 to ensure that CP’s personal budget included adequate payment for her needs, including her weekly attendance at the placement, represented a failure by the Council ab initio to comply with its statutory duties under s26 of the Care Act 2014 … read in the light of the statutory Guidance.
“The Council had acted unlawfully in failing to comply with its statutory obligations properly to fund CP’s care and needs between 11th April 2016 and 17th November 2017; and as a result, CP has remained out of pocket ever since.
“The Council’s unlawful failure has, therefore, had a continuing effect on CP since her financial position has remained less than it should have been. Accordingly, CP is entitled to compensation to reimburse her (in respect of her legal liability to Disability Active).”
In our view, the claim was not conceivably inappropriately made the subject of the public law proceedings. The plan did not need remaking as such; a lawful budget just needed to be added to it. The Court of Appeal asked itself this: if the claimant is entitled to declaratory relief in relation to any alleged unlawfulness, does this give rise to a claim to monetary compensation by restitution or otherwise? In 2004 ,rule 54.3 of the Civil Procedure Rules was amended to permit a claim for judicial review to include a claim for restitution.
In CASCAIDr’s view this case does not mean that it will be enough merely to assert illegality and demand thousands back. It will not be in every case that a service user or a third party spends money or gives a benefit for no up-front fee, to make up for the huge variety of typical Care Act wrongs of councils. Very often, the person will just go without care and have a worse life. In other cases, relatives will step up, whatever the consequences for themselves, without making their views as to their actual unwillingness explicit, for want of legal awareness. That choice can’t be said to give rise to a remedy involving restitution of funds, and certainly not without a successful public law challenge, we think.
The council will have been unjustly enriched regardless, but all public authorities’ decisions are valid unless accepted or found not to be. That can happen by way of a concession by the adult social care department, monitoring officer involvement after correspondence, an upheld complaint to the Local Government and Social Care Ombudsman (LGSCO), or an application for a declaration in the Administrative Court or for an order quashing the decision, necessitating another decision by the council, a lawful one this time.
Voluntary payments to avoid costs
From now on, though, we think that that second decision would need to look back to see whether it was obvious first time round that someone was meeting the need. So we can see a way through to some councils, at least, taking a sensible view and being willing to offer voluntary payments through correspondence, to avoid costs and precedents. This is as they do when they accept the LGSCO’s recommendations (increasingly common these days) for reimbursement for periods of unassessed need in delay cases or where the Care Act processes have clearly not been followed.
Of course, all assets and strengths-based care planning that openly utilises willing, informal care could be said to fix a council with knowledge that it is being provided, and is enabling a saving against the real cost of a plan covering the total eligible care needs. Where that reliance on something plainly unsuitable is indefensible, or the contribution becomes unwilling, and is not continued, but no challenge to a failure to increase the care plan is even intimated, the service user will be left in need and cannot simply claim restitution, in our view.
This makes advisers and generic, as well as formal Care Act, advocates hugely responsible for flagging this risk up to family carers of incapacitated people, who are often just too scared of cuts being made on a review even to raise their loved one’s statutory rights.
But where a person or their family has paid out money for something that was missing, where the necessity for which has long been clearly asserted in writing, such that it can fairly be said the council has been taking the benefit of that provision, despite the paying person’s objection or factual unwillingness, then there could be a claim for restitution.
Where a third party has actually been paid, the claim will be strongest. But even where the service user has only incurred a liability to pay, and no money has changed hands, then a reasonable sum for the service is the measure of what a council would have to reimburse, regardless of time limits, as a matter of both public and private law principle. This is regardless of mental capacity, given the statutory obligation that is provided for in section 7 Mental Capacity Act that if necessary goods or services are supplied to a person who lacks capacity to contract for their supply, they must pay a reasonable price for them.
A cursory read of recent LGSCO decisions about breach of the Care Act, and conduct ‘not in compliance’ with it, highlights the veritable tsunami of public law illegality just being allowed to roll on by directors in adult social care. These are usually unremedied, and rarely called out by registered social workers, no doubt in fear for their jobs, regardless of whistleblowing protection.
We wonder what Social Work England, the new regulator, would think about that, and we long for some resurrection of respect for the rule of law.
Making conversations Care Act-compliant
Any council running the Care Act process on the lines of a few short conversations with clients needs to consider the compatibility of that model with the mandatory requirements in the Care Act, and needs to document these conversations compliantly with the Care Act itself – alongside entitlement to advocacy, involvement of the right people, due process, coherent reasons and copies of documents when required. This case treats as unlawful the ignoring of statutory duties such as the section 9 or section 10 requirements, assessment regulations, guidance, and sections 12, 13, 24, 25 and 26 requirements.
We think that people stuck in similar situations to CP should refer the council to paragraph 10.86 of the Care Act statutory guidance, which states that: “In the event that the plan cannot be agreed with the person, or any other person involved, the local authority should state the reasons for this and the steps which must be taken to ensure that the plan is signed-off.”
People should demand the benefit of such a management review, so that the council can put right any non-compliance with legislation, without further ado.
Another route is the use of the monitoring officer, whose role is to report to elected members about any likely contravention of the law or legal principles. However, our recent experience of this route is less than positive and we feel that an Administrative Court judgment is needed about the scope of that governance duty itself, to ensure that monitoring officers actually interpret it properly.
Failures to use alternatives to court
CASCAIDr corresponds with senior management, legal departments and monitoring officers every week. We use this remedy to help people avoid getting stuck in an ill-informed complaints system, obviating the need to become adversarial or threaten judicial review.
They often respond saying that even coherent (and 10-page!) accounts of the breaches of statutory duties and guidance that we always set out do not trigger their duty and that it is just ‘a dispute’ – without even disagreeing with the facts that we have framed the referral around.
In this case, the suggestion that unspecified alternative remedies to judicial review should have been used was simply brushed aside. The complaints system had got CP nowhere. The judge said that the routes taken (judicial review and the first-tier tribunal) were appropriate, precisely because she had legal rights to enforce.
If a rush of public law litigation is to be contained, likely funded on a ‘no win no fee’ basis, monitoring officers will need to engage properly with referrals which identify breaches of the Care Act, or they will have to answer, in one arena or another, for failure to discharge their own duties under their governing legislation.
Belinda Schwehr is chief executive of legal advice charity CASCAIDr (www.CASCAIDr.org.uk) and owner of consultancy Care and Health Law. She has been a barrister, solicitor advocate, presenter, writer and university law lecturer.