Challenging times: Supporting vulnerable people in times of austerity. The role of the courts.

1. Challenging times: Supporting vulnerable people in times of austerity.The role of the courts. Ian Wise QC Doughty Street Chambers. 13 March 2013 1

2. Overview • In this talk we will consider the role of the courts generally in protecting the rights of vulnerable people, both children and adults • In doing so we will examine some of the recent ‘cuts cases’ and consider what benefit they have provided for vulnerable people • Recent court cases show that courts can prevent cuts to services (but will not always do so) 2

3. Powers and Duties • There are a vast range of powers and duties imposed on public bodies by Parliament and the common law • We are particularly concerned with the duties imposed on local authorities towards vulnerable children and adults • It is very important that the nature of these duties is properly understood otherwise there is a real danger that they will be downgraded into powers. 3

4. Specific Duties Duties have to be complied with regardless of resource considerations because, “to permit a local authority to avoid performing a statutory duty on the ground that it prefers to spend the money in other ways is to downgrade a statutory duty to a discretionary power. .... If Parliament wishes to reduce public expenditure on meeting the needs of sick children then it is up Parliament so to provide”, per Lord Browne-Wilkinson in R v East Sussex County Council ex parte Tandy [1998] AC 714, 749. 4

5. What do they have to do (1) • Examples of specific social care duties towards children and adults include the duty to: • Assess the needs of children who may be in need of support as required by the Framework guidance and adults as per s.47 of the NHS & Community Care Act 1990 • Provide services necessary to meet the needs of disabled children and adults, s.2 Chronically Sick and Disabled Persons Act 1970, see ex parte Barry [1997] AC 584 • Assess the needs of a person over 16 who cares for a person over 18 who may be in need of community care services, s.1 Carers and Disabled Children Act 2000 5

6. What do they have to do (2) • Examples of specific educational duties towards children include the duty to: • Arrange “suitable education” for children not in school, s.19 Education Act 1996 • Arrange the provision set out in a statement of Special Educational Need, s324(5) Education Act 1996 • Arrange to meet the reasonable educational and training needs of children in youth detention having regard to their abilities and any special educational needs they may have, s.18A Education Act 1996 6

7. What do they have to do (3) • Examples of specific ‘leaving care’ duties towards children include the duty to: • Appoint a personal advisor for a child who has been looked after by local authority for more than 13 weeks after 14 years, para 19C, sch 2 to Children Act 1989 • Carry out assessments and produce pathway plans for eligible children dealing with support to be provided up to 21/25 years, para 19B, sch 2 to Children Act 1989 • See eg R(J) v Caerphilly CBC [2005] 2 FLR 860 7

8. What do they have to do (4) • In making decisions that affect children authorities have to ensure , so far as possible, that their wishes and feelings are considered, see eg s.17(4A) and s.20(6) of the Children Act 1989 • Ensure that a child’s interests are represented, article 8 and CF v SoS [2004] 2 FLR 517 • Consult on any changes to services for children and vulnerable adults • Decision-makers must ensure that they are properly informed by asking themselves the right questions, Secretary of State for Education and Science ex parte Tameside MBC [1977] AC 1014 8

9. Procedural Obligations • Procedural obligations that have been invoked in recent cuts cases include: • The ‘due regard’ duty found in s.149 of the Equality Act (and the former s.49A DDA) • The duty to consult, both common law and statutory duty • Cases have had mixed success, the most important successful cases being the Birmingham and Isle of Wight cases, R(W and others) v Birmingham CC [2011] 14 CCLR 516 & R(JM) v Isle of Wight Council [2012] 15 CCLR 167 9

10. The Birmingham case (1) • 4 disabled adults challenged B’ham’s decision to only provide for ‘critical’ needs • Most local authorities provide services to meet ‘substantial’ and ‘critical’ needs • The move to ‘critical only’ would have meant a reduction in services for many of the most disabled people in B’ham (4,000+) • Challenge was made to the B’ham’s policy decision and to its related budget decision 10

11. The Birmingham case (2) One of the claimants was described in the judgment: H is 29 years old. He has a severe learning disability, autism, is profoundly deaf and has scoliosis of the spine. H has a wide range of complex needs and can present with challenging behaviour including smearing and eating his own faeces. H lives at home with his parents, an arrangement which depends upon the Council providing 92 nights of respite care annually. He has been assessed as having a mixture of ‘critical’ and ‘substantial’ needs, including ‘substantial’ needs relating to his requirement for daytime provision. 11

12. The Birmingham case (3) • On behalf of the claimants it was said that these decisions were unlawful because: • Birmingham had failed to comply with its duty to have due regard to the need to take steps to take account of disabled person’s disabilities as required by section 49A of the Disability Discrimination Act 1995; • There had been inadequate consultation on the proposed changes, such consultation as there had been being unclear and based on confusing information. 12

13. The Birmingham case (4) With regards to the disability equality duty the judge found: I readily accept that throughout the process the council was giving consideration to how to address the needs of the disabled. In that sense its decisions taken in relation to adult social care were decisions which were relevant to its performance of the s 49A duty. That is not the same thing, however, as doing what s 49A seeks to ensure: namely to consider the impact of a proposed decision and ask whether a decision with that potential impact would be consistent with the need to pay due regard to the principles of disability equality 13

14. The Birmingham case (5) The judge also found that the consultation had been confused in that it was unclear in the consultation documents whether the proposals related to personal care only or all social services for disabled adults. Furthermore the consultation only made clear at a very late stage (and then not at all clearly) that the proposed savings of £33m was not related to the move to ‘critical only’ at all. 15

15. The Birmingham case (6) • The upshot of the judgment was that B’ham reverted to providing services to meet ‘substantial’ as well as ‘critical’ needs • B’ham has not tried to reintroduce these cuts to services for disabled people • This shows that the courts can indeed prevent cuts to services for vulnerable people 15

16. Other cases • The High Court followed a similar approach in a case against the Isle of Wight • It has however taken a different approach in unsuccessful challenges to policies of Lancashire and Manchester which may have adversely affected disabled people • Similar challenges have also been made in a number of cases concerning library closures and council tax support schemes with mixed success • Current claims against revised housing benefit regulations are ongoing 16

17. KM v Cambridgeshire CC [2012] 3 All ER 1218 • Essential Background: • KM profoundly disabled young man (26 at time of SC hearing) living with mother and two younger siblings • Long-running dispute between KM’s mother and LA re care needs – although agreed all needs ‘critical’ • Series of different calculations made by LA of level of support required • Independent SW assessed needs and drew up ‘care plan’ • LA’s final offer - £85k pa, but no proper link (we said) between this sum and KM’s assessed needs 17

18. KM (2) KM turned on construction of the CSDPA 1970 s 2 duty, read with the duty to make direct payments under Health and Care Act 2001 s 57 Re CSDPA 1970, Lord Wilson identified three stages at [15]: What are the needs of the disabled person? In order to meet these needs, is it necessary for the LA to make arrangements for the provision of any of the listed services (in CSDPA 1970 s 2)? If yes, what are is nature and extent of the listed services for which it is necessary for the LA to make arrangements? 18

19. KM (3) Where a LA intend to provide support by way of direct payments, a further question arises (Lord Wilson at [23]) 4) What is the reasonable cost of securing provision of the services which have been identified as those for which it is necessary for the LA to make arrangements? No dispute in KM about 1) and 2), so in fact the issues were: What services were needed? (question 3) What would be the reasonable cost of securing provision of these services? (question 4) 19

20. KM (4) Outcome – para [38] • Rationality challenge failed; ‘rational for LA to use the RAS ... provided that the result was cross-checked…any flaw in the computation was likely to be in [KM’s] favour’ • LA ‘should have made a more detailed presentation to [KM] of how in its opinion he might reasonably choose to deploy the offered sum…’ • However, because of evidence filed post-issue ‘it would be a pointless exercise of discretion to order that [the decision] should be quashed so that the appellant’s entitlement might be considered again...’ 20

21. KM (5) Conclusions (1) Appellant won on law but lost on facts • Court of Appeal’s ‘erroneous’ approach overturned – need for reasons and transparency • RAS - permissible starting point but LAs must then demonstrate that the indicative sum is reasonably sufficient to purchase necessary services to meet each eligible need 21

22. KM (5) Conclusions (2) • High degree of scrutiny should be applied by Court to rationality of resulting decisions – ie would a reasonable LA conclude that the final sum offered is sufficient to meet the assessed needs? • Reasons must be provided, potentially in some depth – but query whether the Court will quash decisions solely because of lack of reasons if decision also not arguably substantively irrational. 22

23. KM (6) • What the SC did not decide in KM was whether the HL was correct in Barry to have decided (3:2) that local authorities can take their resources into account when deciding whether it is “necessary” to provide support in order to meet the needs of a disabled person • Baroness Hale expressed support for the minority view in Barry that resources were not relevant to this issue (R(McDonald) v Kensington & Chelsea RLBC [2011] PTSR 1266) • This issue is likely to become increasingly important as resources get tighter in children’s and adult services 23

24. Some thoughts to take away • Simple assertions that there isn’t the money to provide services to children in need and vulnerable adults is not enough and may be unlawful • Failure to meet specific duties is unlawful • Decisions to reduce services without consulting and taking relevant information into account will also be unlawful • Legal framework for the protection of vulnerable children and adults remains intact and is likely to remain so • In time of cuts the need for vigorous representation of vulnerable people is especially important. 24

25. Questions and discussion Ian Wise QC Doughty Street, London i.wise@doughtystreet.co.uk 25