On 29 September 2017, Thomson Reuters was pleased to host a meeting of the Lawyers in Local Government (LLG) Adult Social Care and Health SAA for the London region. The group provides a focus of professional knowledge and expertise aimed at contributing to the development of law and best practice in adult social care and health. The group also assists with developing training and networking opportunities for local authority lawyers specialising in this area of law.
The meeting was jointly chaired by Stephanie Broomfield, a principal lawyer at the London Borough of Islington and Pamela Clarke, a senior lawyer at the South London Legal Partnership (a legal service provided by the London Boroughs of Merton, Kingston upon Thames, Richmond upon Thames, Sutton and Wandsworth).
Thomson Reuters is an LLG corporate partner.
What was discussed at the event?
Members heard presentations to the group from the following:
- Guest speaker Jonathan Auburn of 11 KBW on some of the implications and lessons to be learned from the High Court and Court of Appeal decisions in R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin) and R (Davey) v Oxfordshire County Council [2017] 2017 EWCA Civ 1308 respectively (see below).
- Mary-Anne Anaradoh, Senior Editor at Practical Law Public Sector on:
- Adult social care in the 21st century: current and future challenges for local authority lawyers.
- Recent cases and developments in adult social care and health.
R (Davey) v Oxfordshire County Council [2017]
This litigation is of particular interest to adult social care practitioners, as it is the first case in which the provisions in the Care Act 2014 (CA 2014) have been considered by the Court of Appeal. However the High Court decision is worth reading in full, as the Court of Appeal specifically endorsed the reasoning set out in the judgment of Mr Justice Morris, which it described as “meticulous and comprehensive”. For more information on both decisions, see Legal updates, Council’s decision to reduce personal care package of severely disabled adult not unlawful (High Court) (full update) and Court of Appeal upholds local authority’s substantial reduction in personal budget of severely disabled person.
Jonathan Auburn (and co-counsel Zoe Gannon also of 11KBW) represented the defendant council in both cases. Jonathan’s presentation highlighted a number of key learning points from both decisions which provide helpful guidance on the:
- Duty to promote individual well-being (section 1, CA 2014).
- Assessment duties (section 9, CA 2014).
- Difference between “needs” and “wishes” and the obligations of the local authorities in light of this distinction.
- Impact of the United Nations Convention on the Rights of Persons with Disabilities on UK domestic law.
- Evidence and intensity of review in adult social care judicial review cases. The message that is clearly conveyed in the decisions, is that it is not for the court to be prescriptive as to the degree of detail in an assessment or a care plan; these are matters for the local authority and if necessary, for its own complaints procedure or a referral to the Secretary of State. The court is the last resort where there is illegality (Morris J, at paragraph 60). The Court of Appeal’s observations in relation to ex post facto evidence and the level of scrutiny that should be imposed on social work assessments are perhaps the most significant part of its judgment for local authorities. The court confirmed that it is possible to rescue defects and gaps in the evidence by subsequent witness statements. Lord Justice Bean went further and specifically endorsed the observations of the court in R (Ireneschild) v London Borough of Lambeth [2006] EWHC 2354 (Admin) where Lord Justice Hallet stated that “One must always bear in mind the context of an assessment of this kind. It is an assessment prepared by a social worker for his or her employers. It is not a final determination of a legal dispute by a lawyer which may be subjected to over zealous textual analysis. Courts must be wary, in my view, of expecting so much of hard pressed social workers that we risk taking them away, unnecessarily, from their front line duties” (Bean LJ, at paragraph 77).
Adult social care in the 21st century: current and future challenges for local authority lawyers
Mary-Anne’s presentation examined the factors influencing the future role of local authority adult social care lawyers.
The changing landscape of legal services
Economic pressures, changes in consumer habits, the increasing influence of technology, increased competition, and the wider political agendas around funding and access to justice are all key drivers of change in the legal services market. Law firms and other legal service providers have had to adapt and innovate in order to stay competitive. The Legal Services Act 2007 removed many of the barriers to competition in the market so that services that were previously delivered through traditional legal services, are now being met through alternative providers, such as the Big 4 accountancy firms, generalist legal businesses and new models like managed services providers, legal process outsourcers and insourcing companies to name just a few. These organisations have a wide practice scope that can offer a range of services and efficiencies from low-cost high-volume offerings. Law firms and other legal services providers are also harnessing mobile technologies, advances in software, artificial intelligence and innovation to meet the demands of increasingly savvy and sophisticated consumers of legal services.
Local authority legal departments are not immune from these changes. As law firms strive to meet the demands of their business clients and save costs, so local authority lawyers must address their minds to how their roles will be affected by their client departments’ drive for greater efficiency in the delivery of adult social care, particularly through the use of technology and innovation.
Factors and pressures driving change in adult social care
The House of Commons Communities and Local Committee’s report on adult social care was published on 31 March 2017 and is the culmination of its inquiry examining the serious impact of funding pressures on adult social care. The report makes a number of recommendations about the future of funding of adult social care which are set out in part 5 of the report. Interestingly, the committee found that constraints and demographic pressures are acting as a driver for some councils to innovate and change the way they deliver care. However, due to budget pressures, most councils are “in panic mode” and are not ready to re-think the way they do things. One of the committee’s recommendations therefore, is that the government should create an innovation fund to encourage and give councils the capacity to consider how innovative approaches could be applied in their local area. The committee also observed that assistive technology is already helping people stay at home longer, reduce hospital admissions and co-ordinate care between different agencies. Smart technology will be an important part of improving care in the future. There are a number of leading edge examples that illustrate how technology and innovation can be used to transform the provision of adult social care; from humanoid robots in nursing homes in Japan, to Hampshire County Council’s pilot of new Amazon Echo technology to support older people needing care in their own home. The forthcoming adult social care Green paper is expected to consider the role that innovation and technology can play in reforming the adult social care system.
How changes in the legal services market and the challenges facing adult social care are affecting local authority adult social care lawyers, and how lawyers’ roles and skills need to adapt to meet these challenges
Attendees at the meeting acknowledged that these combined forces will have an impact on the future role of local authority lawyers, and that there is a need for lawyers in all sectors to expand their skills base beyond purely technical legal knowledge in order to adapt to the new environment.
Update on recent cases and developments
For more information, see the Practical Law Public Sector Adult Social Care Quarterly digest and our Care Act 2014 case tracker.
Future meetings
The next meeting of the group will be held at the Islington Town Hall in January 2018, the precise date to be confirmed.
If you are a local authority lawyer and are interested in joining the group, you can contact Pamela Clarke at careact.lg@merton.gov.uk and Stephanie Broomfield at Stephanie.Broomfield@islington.gov.uk.
Thomson Reuters looks forward to building on its existing partnership with the LLG.
Lawyers in Local Government: background
LLG was formed in April 2013 by the merger of the Association of Council Secretaries and Solicitors (ACSeS) and Solicitors in Local Government (SLG). LLG members include local government legal or governance officers, Monitoring Officers and their deputies, solicitors, barristers, legal executives, licensed conveyancers and trainees.