Practical Law

This is the first of our series of quarterly adult social care update blogs, giving readers a snapshot of the most important cases, issues and developments in adult social care. This post looks at developments from August to October 2015.

Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal developments covered or if you think we have missed something that should be brought to the attention of adult social care practitioners.

NEW LEGISLATION

Counter-Terrorism and Security Act 2015: revised prevent duty guidance comes into force

On 18 September 2015, the Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Guidance) Regulations 2015 came into force. They bring into force revised statutory guidance for local authorities and schools (and other specified authorities as listed in Schedule 6 to the Counter-Terrorism and Security Act 2015 (Act)), which:

• Covers how specified authorities in Scotland, England and Wales should perform their duty under section 26(1) of the Act to have due regard to the need to prevent people from being drawn into terrorism.
• Replaces the previously issued guidance that came into effect on 25 March 2015.

Social Services and Well-being (Wales) Act 2014 (Commencement No 2) Order 2015: establishment of independent safeguarding board

The Social Services and Well-being (Wales) Act 2014 (Commencement No 2) Order 2015 was made on 25 September 2015. Article 2 of the Order appoints 21 October 2015 as the day on which sections 132 and 133 of the Social Services and Well-being (Wales) Act 2014 (Act) will come into force.

Section 132 establishes the National Independent Safeguarding Board and sets out its duties and functions, and section 133 allows for regulations to be made about the National Board, covering aspects such as its constitution, membership and proceedings.

The National Independent Safeguarding Board’s duties will be to:

• Provide support and advice to local safeguarding children and adults boards (established under section 134 of the Act), to ensure that they are effective.
• Report on the adequacy and effectiveness of arrangements to safeguard children and adults in Wales.
• Make recommendations to the Welsh Ministers as to how those arrangements could be improved.

Care and Support (Eligibility)(Wales) Regulations 2015: eligibility criteria

The Care and Support (Eligibility)(Wales) Regulations 2015 were made on 24 July 2015 and will come into force on 6 April 2016.

The Regulations set out the eligibility criteria that a local authority must apply to establish whether or not an individual who has needs identified in an assessment carried out under the Social Services and Wellbeing (Wales) Act 2014, is entitled to have their needs met by the local authority.

Social Services and Well-being (Wales) Act 2014 (Social Enterprise, Co-operative and Third Sector) (Wales) Regulations 2015: promotion of social enterprises and c-operative organisations

The Social Services and Well-being (Wales) Act 2014 (Social Enterprise, Co-operative and Third Sector) (Wales) Regulations 2015 were made on 8 July 2015 and will come into force on 6 April 2016.

The Regulations were made under section 16(3) of the Social Services and Well-being (Wales) Act 2014. Section 16 of the Act requires local authorities in Wales to promote the local development of social enterprises and co-operative organisations or arrangements to provide care, support and preventative services, and the availability in its area of such services from third sector organisations.

The regulations:

• Provide further detail about the sorts of organisations or arrangements that will be treated as social enterprises, co-operative organisations or arrangements.
• Set out what constitutes activity that a person might reasonably consider to be carried on for the benefit of society, for the purpose of the definition of a “social enterprise” in section 16(2) of the Act.
• Make provision for what may constitute a section of society, for the purpose of the definition of a “social enterprise” and a “third sector organisation”.

The regulations bring some welcome clarification to what the new duties on Welsh local authorities will involve.

Care and Support (Ordinary Residence) (Specified Accommodation) (Wales) Regulations 2015: meaning of specified, and care home accommodation

The Care and Support (Ordinary Residence) (Specified Accommodation) (Wales) Regulations 2015 (regulations) were made on 7 July 2015 and will come into force on 6 April 2016.

Section 194(1) of the Social Services and Well-being (Wales) Act 2014 makes provision for establishing an adult’s ordinary residence in the situation where the local authority which is responsible for meeting their needs for care and support, makes arrangements for them to live in accommodation of a specified type. In such a case, the adult is to be treated as ordinarily resident in the area in which they were ordinarily resident immediately before they began to live in the accommodation.

The regulations:

• Provide that care home accommodation is accommodation of a specified type for the purposes of section 194(1) of the Act (regulation 2).
• Set out the meaning of care home accommodation, which is accommodation in a care home as defined in section 3 of the Care Standards Act 2000 (regulation 1(3)).

Safeguarding Boards (Functions and Procedures) (Wales) Regulations 2015

The Safeguarding Boards (Functions and Procedures) (Wales) Regulations 2015 were made on 1 July 2015 and will come into force 4 April 2016. They apply to both adults and children safeguarding boards (Boards) and list the work that Boards must undertake.

The regulations cover:

• The main purpose of the Boards. For example to promote multi-agency safeguarding practice and carrying out reviews if there has been a death, life threatening injury or serious or permanent impairment.
• Board appointments.
• Involvement in Boards.

Care and Support (Assessment) (Wales) Regulations 2015: needs assessments

The Care and Support (Assessment) (Wales) Regulations 2015 were made on 6 May 2015 and will come into force on 6 April 2016.

Sections 19, 21 and 24 of the Social Services and Wellbeing (Wales) Act 2014 impose duties on local authorities to assess the needs of adults, children and carers. The Regulations make further provision about those assessments, specifying local authorities’ duties with respect to the:

• Training and expertise of persons carrying out assessments.
• Considerations to which the local authority must have regard when carrying out an assessment, including the person’s circumstances and the personal outcomes that they wish to achieve.
• Requirement to make a written record setting out the results of the assessment and the matters to which the local authority has had regard in carrying out the assessment.

Adult Protection and Support Orders (Authorised Officer)(Wales) Regulations 2015: authorisation to apply for for an adult protection order

The Adult Protection and Support Orders (Authorised Officer)(Wales) Regulations 2015 were made on 1 July 2015 and will come into force on 6 April 2016.

The Regulations set out restrictions on the person or categories of person who may be authorised by a local authority to apply for an adult protection and support order where access is required to an individual suspected of being an adult at risk of abuse or neglect.

CARE ACT 2014: DEVELOPMENTS

High Court quashes council’s refusal to accommodate individual under Care Act 2014 provisions (R (SG) v London Borough of Haringey)

The High Court has quashed a decision by the London Borough of Haringey which held that the claimant (SG) (who has since been granted asylum) was not eligible for care and support under the Care Act 2014 (CA 2014) and was not entitled to be provided with accommodation under the Act.

The High Court held that:

• SG’s needs assessment resulting in the 20 May 2015 decision was flawed and unlawful as SG did not have an independent advocate as required by section 67(2) of the CA 2014.
• SG’s care plan needed to be redone. There was no evidence that the council considered whether, even if the existing services SG was receiving could have been provided in a non-home environment, they would have been effective if the claimant was street homeless. There was little evidence that the council “actually gave consideration to the need to provide the claimant with accommodation when it made its decision of 20 May”.
• Further, those undertaking the assessment appeared to have taken into account the accommodation that SG was currently receiving under the IAA 1999, which was inappropriate.

This decision is the first one under the CA 2014 in relation to the care and support provisions of the Act. It seems clear from the judgment that case law and principles under the previous legislative regime are likely to still be highly relevant under the CA 2014 and to cases going forward, particularly in relation to accommodating those with care and support needs. Of particular interest to many local authorities here will also be the importance of ensuring that an independent advocate is appointed, even though defending counsel was at pains to point out that as a result of the new CA 2014, “demand currently outstrips supply”.

National Audit Office reports on implementation of first phase of Care Act 2014 reforms

On 2 August 2015, the National Audit Office (NAO) published a report highlighting some of the approaches that local authorities are using to implement the first phase of the reforms in the CA 2014. Nine local authorities representing a range of local authority types in different regions, were selected by the NAO as case study areas. The report examines the information gathered from these areas and highlights the approaches they have developed to manage the changes required by the CA 2014.

In particular the report examines the:

• Uncertainty and risks local authorities face in terms of estimating increased demand from carers and self-funders for assessments and local authority services, and how the case study areas are addressing these issues.
• Ways in which the case study areas are using information technology to improve joint working and data sharing, and initiatives they have developed to achieve implementation of the CA 2014

The report will be of interest to other local authorities developing their own approaches to implementation.

LOCAL GOVERNMENT OMBUDSMAN (LGO) DECISIONS

Local authorities keep responsibility for quality of contracted out services

On 8 October 2015, the LGO published its report on a complaint against Somerset County Council, concerning the local NHS Trust’s inaccurate assessment of the social care needs of a young adult with Asperger’s Syndrome. The Trust was contracted to carry out assessments on the council’s behalf and had wrongly decided that the man’s direct payments should stop, leaving the man without payments for 14 months.

The LGO found that the council failed to keep good records of the man’s needs and to ensure that the Trust did so, and that the Trust’s faulty review of the man’s care amounted to a fault by the council. The council had argued the complaint should be made against the Trust, but the LGO emphasised that accountability for council functions like adult social care cannot be delegated.

The council was asked to review its monitoring of third party contracts to ensure that full records are made, and that officers are aware of their duties and responsibilities. The council was also ordered to pay the man a sum equivalent to the missed payments, plus £500 to his mother for having to support her son’s needs alone.

The case is a reminder of the fact that councils may not contract out of their social care responsibilities and the LGO will take action against councils whose contractors have not carried out these functions properly. Section 79(6) of the Care Act 2014 reflects this: it states that any delegated social care functions are to be treated as if they had been done or omitted by the council. Councils should therefore ensure that organisations carrying out delegated social care functions do so correctly.

LGO finds insufficient social care costs information from local authorities risks families paying too much

On 24 September 2015, the LGO published a focus report examining whether families in England are paying too much for social care because they have not been given comprehensive information about the costs of care available in their area.

The report:

• Identifies the common mistakes that the LGO has found when investigating complaints about care home “top-up fees”. These fees are paid (often by families) to make up the difference between the social care costs contributions made by the care recipient and the local authority and what the social care being given actually costs.
• Gives examples of councils providing confusing or incorrect advice, not offering potential residents a genuine choice of affordable care home, and not having any affordable homes available.
• Provides guidance for councils to ensure that their procedures do not put people at risk of paying too much and offers questions for councillors to help scrutinise their authorities’ social care policies and procedures.

Council wrong to refuse direct payments to family member based on Working Time Regulations

On 10 August 2015, the LGO published its report on complaint number 14 005 078 against Cheshire East Council, concerning the refusal to provide direct payments to meet the needs of a disabled adult (Mr Y), on the grounds that it would contravene the Working Time Regulations 1998 (WTR).

Mr Y wanted to use direct payments to employ his mother as his carer but the council sought to limit the amount of direct payments to 48 hours a week even though he had been assessed as requiring 56 hours care per week. The LGO made findings of fault causing injustice on the grounds that it was wrong to use the WTR to limit the number of hours of care that could be met by direct payments. The Council had not carried out a risk assessment or undertaken detailed discussion about the hours of care that the mother could safely provide.

The Council agreed to carry out the LGO’s recommendations, which included:

• Developing a risk assessment framework for support planning.
• Retaking its decision as to whether Mr Y can employ Ms X for more than the 48 hours week stipulated in the WTR.

The case highlights some of the less straightforward issues that councils have to consider when deciding whether to make direct payments. The restriction preventing use of a direct payment to employ a close relative living in the same household, except where the local authority determines that it is necessary to do so, is maintained in the Care and Support (Direct Payments) Regulations 2014 (SI 2014/2871), which came into force on 1 April 2015. Councils should ensure that their policies on direct payments reflect the correct legal test.

Councils should regularly review care home residents’ assets

The LGO has published its report on a complaint concerning North East Lincolnshire Council’s failure to reassess a resident’s contribution towards her residential care costs when the value of her remaining capital fell to £23,250.

C was a permanent resident in a care home but she owned a property, the estimated value of which exceeded the capital threshold of £23,250. The council agreed to enter into a deferred payments agreement (DPA), creating a debt against her property that would be repaid once her house was sold.

When the debt reduced her remaining capital to below the capital threshold, C should have started to pay reduced contributions for her care. However the council did not reassess her contribution. This meant that when she died and her house was sold to pay the debt, the estate was left with less capital than it should have had.

The LGO found that there had been fault causing injustice. The council had failed to carry out a financial assessment when the value of C’s remaining capital reached £23,250 and the final debt to the council should not have included contributions that were payable by the council once the capital fell below the threshold.

The council accepted the LGO’s recommendations including that the council should review:

• All current residents with DPAs to ensure they are not similarly disadvantaged.
• Its procedures to take into account the Care Act 2014 requirements.

The LGO’s recommendations in this case are relevant to all local authorities, as the introduction of universal deferred payments under the Care Act 2014 will result in the increased use of DPAs.

DEPRIVATION OF LIBERTY

DH sends guidance on MCA 2005 and DoLS to local authorities and NHS

The Department of Health (DH) has written to local authority and NHS leads on the Mental Capacity Act 2005 (MCA 2005) and the associated Deprivation of Liberty Safeguards (DoLS), with an update on developments in this area of law.

The letter and related resources will be a useful point of reference for all of those in local authorities and the health and care system who deal with the MCA 2005 and DoLS.

Judge criticised for failing to apply Cheshire West in deprivation of liberty case (KW and others v Rochdale Metropolitan Borough Council)

The Court of Appeal has allowed a second appeal in litigation concerning the deprivation of liberty of a mentally incapacitated woman being cared for in her home.

In this second appeal, the court criticised the judge at first instance for failing to give effect to the consent order made on the first appeal, which the judge had stated to be ultra vires. The court held that the judge had been bound to apply the decision in Cheshire West to this case, irrespective of his view of that decision. The court disagreed with Mostyn J that, in the absence of a reasoned judgment from the Court of Appeal explaining why he was wrong, the law was in a state of serious confusion. The court stated that even if Cheshire West was wrong, there was nothing confusing about it. Mostyn J’s passionate view that the legal analysis of the majority in Cheshire West was wrong was in danger of distorting his approach to these kinds of cases.

The court therefore ordered that the review in KW’s case should be conducted by a different judge, who need not be a High Court judge. In its judgment, the court also considered the nature and scope of an appeal court’s power to allow an unopposed appeal on paper, pursuant to PD 52A.6.4.

The decision clarifies a previous area of uncertainty about whether it is possible for a person to be deprived of their liberty in their own home (as opposed to in a care home or supported living) as a result of care arrangements made by the State, that is, a local authority. The Court of Appeal decision confirms that this is possible. The extent to which the State must be involved in the care arrangements for a deprivation of liberty to arise is still an untested area. Further clarity on this point is needed to enable local authorities identify and prioritise cases where the court is required to authorise deprivations of liberty arising from care arrangements that are delivered in a person’s own home.

Court of Protection (CoP) refuses to authorise deprivation of liberty even when alternative accommodation is not available (North Yorkshire County Council v MAG and others)

The CoP has refused to authorise a deprivation of liberty in accommodation which was unsuitable, even though there was no immediate alternative residential option.

MAG was a 34 year old man with autism, cerebral palsy and a learning disability. Since 2006, he had been living in supported accommodation, consisting of a ground floor one bedroom flat provided by the local authority.

MAG lacked capacity to decide where he should live, and to make decisions about his care needs. The council sought declarations from the court that it was in his best interests to be deprived of his liberty, and to reside at his current placement.

It was accepted that MAG’s care arrangements involved a deprivation of liberty. However the CoP refused to authorise the deprivation of liberty because:

• MAG’s accommodation was unsuitable and did not meet his assessed needs.
• The council had been too slow in accepting its responsibilities for rehousing, and had failed to take the necessary steps to search for less restrictive accommodation.
• It could not endorse a care regime that risked breaching MAG’s right to liberty, even though no other accommodation was immediately available.

The case illustrates that the court can refuse to authorise a deprivation of liberty, where there is a culpable delay by the council in finding an alternative placement.

The decision is being appealed.

CoP reinstates streamlined paper procedure in Re X with improvements (Re NRA and others)

Mr Justice Charles of the CoP considered ten cases seeking welfare orders under section 16(2)(a) of the Mental Capacity Act 2005. These orders were sought to authorise the deprivation of liberty that would be, or was, created by the implementation of the regime of care, supervision, control and support (the care package) upon which the welfare orders are based. The ten cases were regarded as test cases on the directions that should be given for their determination and, in particular, whether the subject of the proceedings (P) should be a party.

All these issues had been raised by the President of the Family Division in Re X. On appeal against that decision, the Court of Appeal had decided that the President’s rulings were, for technical reasons, a procedural nullity and therefore of no effect. The Court had also expressed the obiter view that, in any event, the President had erred in finding that P did not need to be joined as a party in non-controversial cases involving a  deprivation of liberty. In their view, P needed to be party, with all the procedural consequences that flowed from that.

The test cases were transferred for Charles J to determine whether the streamlined process, based on the President’s conclusion in Re X, should be abandoned or modified and in particular whether, in accordance with the Court of Appeal’s decision, P must always be a party. The Court held that, in an application for a welfare order seeking to authorise, and which when made will authorise, the deprivation of liberty of the individual (P), P does not have to be a party to all such applications.

In two of the test cases before Charles J, orders were made reflecting his conclusion that the procedural safeguards required by Article 5 of the European Convention on Human Rights are provided by appointing a parent of P as P’s Rule 3A representative. However, he considered that improvements could be made to the streamlined paper procedure process that had been set out by the President in Re X for non-controversial applications authorising a deprivation of liberty and in his judgment set out the information that should be provided. Subject to these improvements, the Re X procedure should be introduced.

However, what is apparent is that the issue has not been finally resolved by this judgment. Charles J has urged that a test case in which P has not been joined as a party and the Official Solicitor has not agreed to act as P’s litigation friend and there is no family member or friend as P’s Rule 3A representative should be listed for hearing.

First-Tier Tribunal and Mental Health Review Tribunal must consider deprivation of liberty (PJ v A Local Health Board and others)

Charles J disagreed with previous Upper Tribunal decisions made that when dealing with applications for discharge of a Community Treatment Order (CTO) or Guardianship, the First-Tier Tribunal (FTT) and the Mental Health Review Tribunal (MHRT) could allow the required directions and care regime to continue, despite these potentially being a deprivation of liberty and in breach of Article 5 of the European Convention on Human Rights.

PJ was subject to a CTO, which required him to reside in a specialist care home where he was monitored at all times and escorted when on community outings and required the agreement of involved professionals for restricted unescorted leave. There were immediate suspensions of his unescorted leave if he did not comply with the conditions. He had capacity to consent to these conditions and care regime.

PJ wanted more unescorted time in the community, which was refused. He applied for the CTO to be discharged and claimed that the care conditions were a deprivation of liberty (DOL) in breach of Article 5 of the ECHR. The MHRT dismissed the application on the grounds that the CTO conditions did not amount to a DOL but a restriction of PJ’s liberty and therefore, there was no breach of Article 5. It upheld the CTO on the basis that PJ’s ongoing treatment needs and public protection trumped any human rights issue. PJ appealed these decisions.

Charles J found that the MHRT incorrectly applied the test for whether PJ was deprived of his liberty. It concentrated on the level of supervision and control exercised without considering PJ’s freedom to leave or ability to not adhere to the conditions of the CTO. He declined to make a judgment on whether PJ was deprived of his liberty, although indicates that this is highly likely to be the case. He could not decide whether PJ had the capacity to consent to the conditions, which required further assessment.

Charles J gave permission to appeal, as he acknowledged that his decision directly opposes the decision in the SH case and subsequent cases, which state that the FTT and MHRT jurisdiction does not require them to consider any breach of Article 5 of the ECHR and allows them to sanction a breach.

The purpose of the FTT and MHRT are to provide patients with a speedy route to challenge the lawfulness of their detention. This requires the FTT and MHRT to consider the ECHR and cannot ignore any possible breach of the rights within. The MHA 1983 does not require the FTT and MHRT to ignore and sanction any breach of Article 5 of the ECHR. If the FTT or MHRT concludes that there is a breach of ECHR, they must exercise their powers to end the breach. It may require the discharge of a CTO, which may result in the patient going home or being detained in hospital under a different provision of the MHA 1983.

Duty on local authority to investigate least restrictive alternative (P v Surrey County Council and Surrey Downs Clinical Commissioning Group)

On 22 May 2015, the CoP held that the local authority had a duty to ascertain the least restrictive alternative when deciding whether to grant a standard authorisation under the deprivation of liberty safeguards scheme, including the duration.

The court had to determine whether P’s detention during the relevant periods was unlawful, or in breach of his rights under Articles 5 and 8 of the ECHR.

P had been moved to a care home where his care arrangements constituted a deprivation of liberty. An urgent authorisation was granted only after he had been there for 11 weeks and four days. A standard authorisation for ten months was granted three weeks after the urgent authorisation expired. It was accepted that P was deprived of his liberty during the periods when no authorisation was in place.

P’s relevant person’s representative said the care home was unsuitable and had identified an alternative placement. The best interests assessor’s (BIA) report reflected concerns about the placement but stated it was the least restrictive option achievable in the short term. The BIA recommended a standard authorisation for 12 months.

The court said that given the concerns about P’s placement, the local authority should have investigated whether a less restrictive alternative option was available and granted a standard authorisation for period shorter than ten months.

The case is a reminder that local authorities should consider the circumstances in which a person is deprived of their liberty, when it is meeting the duty in section 51 of Schedule A1 of the Mental Capacity Act 2005 to decide on the duration of a standard authorisation.

MENTAL HEALTH

WG consults on revising the Mental Health Act 1983 Code of Practice for Wales

On 4 September 2015, the Welsh Government (WG) published a consultation on revising the Mental Health Act 1983 Code of Practice for Wales. Section 118 of the Mental Health Act 1983 (MHA 1983) requires the WG to prepare and periodically revise a code of practice in relation to the treatment of patients with mental health issues.

HEALTH AND CARE QUALITY

On 4 September 2015, the Local Government Association (LGA) published a guide on health and care quality systems for local leaders.

The guide provides a summary of the different local groups and agencies’ responsibilities for service quality, including those of health and wellbeing boards, local healthwatch and overview and scrutiny committees.

The guide also includes information on the key roles of providers, commissioners, regulators, and planning and advisory bodies, and suggests key questions local leaders might want to ask those agencies. Annex C contains a useful table showing the source of legislative powers for each agency and accountabilities.