On 16 September 2016, Thomson Reuters was very pleased to host a meeting of the Lawyers in Local Government (LLG) London Adult Social Care and Health Group. 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 lawyer at the South London Legal Partnership (a legal service provided by the London Boroughs of Merton, Kingston upon Thames, Richmond upon Thames and Sutton).
Thomson Reuters is an LLG corporate partner.
What was discussed at the event?
The meeting focused on a number of topical issues including:
- The implications for local authorities following the recent decision in GS v Camden.
- The Court of Protection Case Management Pilot.
- The Law Commission’s proposals for a scheme to replace the Deprivation of Liberty Safeguards (DOLS), and the draft Bill.
- An update on the Care Act 2014, including a review of the areas that have been particularly topical during the preceding 18 months.
- A general update from members on developments in their authorities.
Section 1 of the Localism Act 2011: implications for local authorities following the decision in GS v London Borough of Camden [2016]
The decision in GS v Camden LBC [2016] EWHC 1762 (Admin) has implications for local authorities supporting people who otherwise have no recourse to public funds (NRPF). The court in that case held that the local authority’s power to provide assistance by of way of accommodation using its general power of competence in section 1 of the Localism Act 2011 was converted to a duty (even though the claimant, a Swiss national, had no eligible care and support needs) because failure to assist her would result in a breach of her rights under article 3 of the European Convention on Human Rights (ECHR). (For more information on section 1 of the Localism Act 2011, see Practice note, Localism Act 2011: the general power of competence).
An informative discussion was led by Shadia Ousta-Doerfel of the London Borough of Islington who outlined a number of key points arising from the decision and some views on the implications for NRPF cases in particular. The two main points to be drawn from the case are that:
- The central tenet derived from the case law developed under section 21 of the National Assistance Act 1948 (the Care Act 2014’s predecessor legislation) that a need for accommodation alone is not a need for care and support, still holds good.
- On the specific facts of GS, the power to provide assistance under section 1 of the Localism Act 2011 was converted into a duty. However that would not necessarily be the position in all cases.
The potential application of section 1 of the Localism Act 2011 can arise in context of people who:
- As with GS, are excluded from local authority support by virtue of Schedule 3 to the Nationality Immigration and Asylum Act 2002 and are assessed as having no eligible needs for care and support.
- Have needs for care and support but have no recourse to public funds and are excluded from local authority support by virtue of Schedule 3.
- Are not caught by the NRPF restriction but have no eligible needs (for example people who are deemed intentionally homeless).
The learning point from GS seems to be that when it is assessing needs, a local authority should be willing to consider any other powers it may have to provide assistance (in addition to its powers to provide care and support under the Care Act 2014), if it is asked to do so. If a local authority is asked to exercise its powers under section 1 of the Localism Act 2011 it should therefore consider whether to exercise those powers or not and give reasons if it decides not to do so.
In addition, a local authority that is assessing the needs of a person from abroad, particularly those who fall within the excluded classes of persons in paragraphs 4-7 of Schedule 3, will normally carry out a human rights assessment and that will give the local authority the opportunity to examine a range of options when it is considering whether it is required to provide assistance. It was noted that the breach of Article 3 of the ECHR is a high bar to meet and therefore GS may not have such far reaching implications as might first be thought. However it does mean that local authorities have more to think about when carrying out their assessments.
Court of Protection Case Management Pilot
The Court of Protection Case Management Pilot commenced on 1 September 2016. It was noted that the process prescribed in the practice direction is “front-loaded” so that much of the documentation has to be prepared at the point the application is issued. The purpose of this is to enable more robust case management decisions to be taken at the outset of the case and so that all the relevant issues are identified as soon as possible in the proceedings.
Another feature of the process is that there appears to be a greater potential for sanctions against legal representatives for failure to comply with directions in the modified Court of Protection Rules 2007 (COPR). The new COPR are in Annex A of the Practice Direction, and set out:
- The overriding objective of enabling the court to deal with a case justly and at proportionate cost, having regard to the principles contained in the Mental Capacity Act 2005 (COPR 1.1).
- The duty of legal representatives to comply with any applicable rules, practice directions or orders of the court (COPR 1.5 (1)).
Members of the group observed that legal representatives will need to be diligent in their efforts to ensure that clients provide the necessary evidence within timescales. The rules are also likely to result in an increase in round-table meetings and parties’ legal representatives will need to ensure that these are properly minuted.
Deprivation of Liberty Safeguards: Law Commission’s proposals and draft Bill
The proposed “protective care” scheme put forward by the Law Commission to replace the current DOLS scheme in Schedule A1 to the Mental Capacity Act 2005 is aimed at mitigating the impact of Cheshire West, which significantly increased the volume of applications that local authorities are required to make in relation to people living in domestic settings. The proposed scheme is also intended to ensure that the procedure for authorising a deprivation of liberty in the community is less cumbersome than the current DOLS system. The draft Bill is expected to have its first reading in December 2016.
The Bill is still very much in the formative stages although under the current time-table, the new legislation is scheduled to come into force next year.
For more information on deprivation of liberty see, Practice note, Deprivation of liberty and mental capacity: overview.
FAQs on the Care Act 2014 and general update on developments in adult social care
Mary-Anne Anaradoh, a senior editor in the Practical Law Public Sector Team, gave a presentation on the most frequently asked questions in adult social care and, in particular application of the provisions in the Care Act 2014 that had been received through Practical Law’s Ask service over the last 18 months. There had been a significant volume of questions from lawyers in local government and private practice. By the far the majority of the questions were in relation to financial assessments and charging for care and support. Members of the group confirmed that this reflected experiences in their authorities as well.
Some of the more topical issues highlighted were:
- Application of the charging and the assessment of resources rules under the Care Act 2014 and associated regulations and guidance.
- Deprivation of assets and the issues associated with establishing whether a deprivation had occurred or was likely to do so.
- Direct payments and in particular the interface with employment law (for more information on this, see Practice note, Employment rights of carers).
- The impact of section 73 of the Care Act 2014 (registered care providers exercising public functions for the purposes of the Human Rights Act 1998) on private care home providers seeking to terminate residential care placements.
- Ordinary residence. The DH consulted on revised guidance in February 2016 following the Supreme Court’s decision in R (Cornwall Council) v Secretary of State for Health and others [2015] UKSC 46, and the final version of the guidance is awaited.
Overall it appeared that the legislation had been successfully implemented, although the training of staff was an on-going issue given that there is a relatively high turnover in the adult social care workforce.
Changes to local authority support for failed asylum seekers and other migrants without immigration status
It was noted that following a consultation last year, the Immigration Act 2016 had made changes to the availability of local authority support to destitute families without immigration status by amending Schedule 3 to the Nationality Immigration and Asylum Act 2002 (section 68 and schedule 12, Immigration Act 2016).
The changes will also mean that such families will no longer be eligible for accommodation or assistance under section 17 of the Children Act 1989 except where support is needed to meet any other social care needs of the child or their family, in order to safeguard and promote the child’s welfare.
The new provisions are not yet in force.
Future meetings of the group
Future meetings of the group will be held at the Islington Town Hall on the following dates in 2017:
- 27 January
- 31 March
- 30 June
- 29 September
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.