public law group judicial review seminar seminar pack(2).pdf · adrian keeling qc silk 2011 year of...

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Tuesday 11th November 2014Maple House, Birmingham

5 CPD

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Practice DirectorTony McDaid

Senior Practice ManagerAbdul Hafeez

Judicial Review Seminar

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Public Law Group

Judicial Review Seminar Tuesday 11th November 2014,

Maple House, Birmingham Contents Section 1 Members List Seminar Programme Seminar Chair Profile – Nageena Khalique Questionnaire Seminar Note Paper Section 2 Keynote Speaker HHJ Purle QC Section 3 Judicial Review: Practice and Procedure General Update and Recent Cases Jenny Wigley Section 4 Disclosure in JR: Looking for the Smoking Gun James Corbet Burcher Section 5 Update on Recent JR Law and Case Studies Claire Van Overdijk & Philip Dayle Section 6 Breakout Session: Option 1 – Health & Social Care The Care Act 2014: What Happens Now? Contining Healthcare: An Overview Laura Davidson, Nageena Khalique & Mike O’Brien

Section 7 Breakout Session: Option 2 – Housing Homeless Persons and Review of Accomodation Needs Tim Jones Age Assessment Disputes – Local Authorities Duties. An Update on Recent Case Law Abid Mahmood Section 8 Breakout Session: Option 3 – Education Children & Families Act 2 Ramby de Mello & Russell Holland

DIVIDER TO GO HERE…

Members listPublic Law

Manjit S Gill QC Silk 2000 Year of Call 1982

Adrian Keeling QC Silk 2011 Year of Call 1990

Timothy Jones Year of Call 1975

Ramby De Mello Year of Call 1983

Kevin Leigh Year of Call 1986

Mike O’Brien Year of Call 1987

Becket Bedford Year of Call 1989

Abid Mahmood Year of Call 1992

Nabila Mallick Year of Call 1992

Joanne Rothwell Year of Call 1993

Nageena Khalique Year of Call 1994

Laura Davidson Year of Call 1996

S Chelvan Year of Call 1999

James Dixon Year of Call 2001

Mark Bradshaw Year of Call 2002

Claire Van Overdijk Year of Call 2003

Suella Fernandes Year of Call 2005

Philip Williams Year of Call 2005

Russell Holland Year of Call 2008

Ian Brownhill Year of Call 2009

Hashi Mohamed Year of Call 2010

James Corbet Burcher Year of Call 2011

Victoria Hutton Year of Call 2011

Philip Dayle Year of Call 2012 (Jamaica: 1996)

Emma Williams Year of Call 2014

To view or download members CVs please visit www.No5.com

Practice Director Tony McDaidSenior Practice Manager Abdul Hafeez

Practice Group Clerks Mark Byrne, Craig Wain, James Tucker & Michael Maher

Tel: +44 (0) 845 210 5555 Fax: +44 (0) 121 606 1501 Email: [email protected]

Judicial Review Seminar Tuesday 11th November 2014

Maple House, Birmingham Programme 5 CPD 10:30 – 10:45 Opening – Nageena Khalique (Seminar Chair) 10:45 – 11:15 Keynote Speaker HHJ Purle QC 11:15 – 11:55 Judicial Review: Practice and Procedure General Update and Recent Cases Jenny Wigley 11:55 – 12:10 Refreshment Break 12:10 – 12:40 Disclosure in JR: Looking for the Smoking Gun James Corbet Burcher 12:40 – 13:30 Update on Recent JR Law and Case Studies Claire Van Overdijk & Philip Dayle 13:30 – 14:30 Lunch

Judicial Review Seminar

Tuesday 11th November 2014 Maple House, Birmingham

14:30 – 16:20 Breakout Sessions Option 1 – Health & Social Care The Care Act 2014: What Happens Now? Continuing Healthcare: An Overview Laura Davidson, Nageena Khalique & Mike O’Brien Option 2 – Housing Homeless Persons and Review of Accomodation Needs Tim Jones Age Assessment Disputes – Local Authority Duties. An Update on Recent Case Law Abid Mahmood Option 3 – Education Children & Families Act 2 Ramby de Mello & Russell Holland 16:20 – 17:00 Final Q&A 17:00 Close

Nageena Khalique Judicial Review/High Court Challenges

Year of Call: 1994 Clerks Senior Practice Manager Abdul Hafeez Practice Group Clerks Mark Byrne James Harte Craig Wain Practice Director Tony McDaid Contact a Clerk Tel: +44 (0) 845 210 5555 Fax: +44 (0) 121 606 1501 [email protected]

Nageena has an established practice in public and Administrative law. She is instructed regularly for and against local authorities and healthcare trusts and in challenges to the actions of public bodies. She has acted in judicial review proceedings in various areas of law including licensing (specialist licenses), mental health, social care law and inquest law. Nageena was junior Counsel in the smoking ban case where the legality of the Government and Trust policy was challenged by patients in a psychiatric unit both in the Judicial Review proceedings and subsequently the Court of Appeal. Nageena has also advised upon and represented local authorities, health trusts and individuals in respect of matters such as: • Social care obligations and continuing care. • Local government vires, consultation and legality of decision making, recently for example in benefits based charging for the local authority. • Decisions in respect of pathway plans and assessments regarding looked after children. • Decisions relating to drugs, funding and hospital closures. • Decision of a postgraduate body to send an “alert” letter in respect of the performance of a GP. • Exercise of the local authority in the application of its adoption policy. • High Court statutory appeals and more recently Upper Chamber challenges following disciplinary hearings (formerly FHSAA appeals). • Judicial review following the decision of Coroners in complex inquests . • Complex medical decisions before the High Court/ Court of Protection such as withdrawal of artificial nutrition and hydration in patients in a persistent vegetative state. Nageena appears in the High Court, the Administrative Court, the Divisional Court and in various professional regulatory tribunals such as the GMC, GDC, the General Chiropractic Council, First Tier Tribunal, specifically the Health, Education and Social Care Chamber, and the Primary Health Lists, Performers List Panels (PCT), the Care Standards Tribunal and the Court of Protection. She appears in the Court of Appeal on administrative law and healthcare law matters. She has also sat as a Chair to the Panel (PCT hearings and as legal assessor).

APPOINTMENTS Nageena has been appointed as Counsel (Band A) on the Attorney General’s List (Regional Panel) instructed by the Treasury Solicitor.

HHJ Purle QC Keynote Speaker

JUDGE CHARLES PURLE QC Date and Inn of call: Grays November 1970 Lincoln’s Inn Ad – Eundem 1988 (Bencher 2004) Q.C 1989 Degrees and other qualifications:

LLB (Nottm), BCL (Oxon)

Qualified Mediator Chairman of the Chancery Bar Association 2004 – 2007. In his practice at the bar, both as a Junior and after taking silk, he specialized mainly in heavy litigation, ranging from the Ocean island litigation in 1986 (concerning the relocation of South Sea Islanders to enable phosphate production in their homeland) to major insolvencies such as Maxwell and BCCI. Appointed as a Specialist Circuit Judge in June 2007. Though he sits mainly as a Chancery Judge, he is authorised also to sit in the Administrative Court and the Upper Tribunal (Immigration and Asylum).

Jenny Wigley Judicial Review/High Court Challenges


Jenny Wigley “has impressed with a series of planning judicial review applications and appeals” (Legal 500, 2009). In the last year, she appeared in a successful defence of a challenge to a Local Plan and she has appeared in a number of other planning related challenges including in particular those related to failure to apply policy and adequacy of reasons. Whilst her current caseload has a strong planning focus, she is keen to apply her expertise and to expand into other areas of judicial review and High Court challenge. Jenny graduated from Cambridge University with a 2(I) in Law. She was called to the Bar in 2000 by the Middle Temple, having worked for five years in a solicitors’ firm in the City. During her time as a solicitor, Jenny practised in the commercial and property litigation department of city firm, Stephenson Harwood, where she also had conduct of the firm’s rating practice. Jenny transferred to the Bar in 2000 and was a tenant at 2 Mitre Court Buildings before joining No5 in 2004. Jenny has written a number of articles on rating and the council tax in both the legal and property trade press. She provides oral representation and advice , both written and in conference, on all aspects of judicial review, planning, rating and the council tax, compulsory purchase, highways and local government. Publications Joint editor of Ryde on Rating and the Council Tax Co-author of the rating section of RICS on-line publication “Dispute Resolution” Editor of rating and council tax section of the Lawyer's Remembrancer Editor of rating section of Atkins Court Forms and Editor of the rating section of Encylopedia of Forms and Precedents. MEMBERSHIPS • Planning and Environmental Bar Association • Administrative Law Bar Association NOTABLE CASES R (Royston Potter) v. Amber Valley BC [2014] EWHC 888 (Admin) Lidl (Uk) GmbH v. Ryder (VO) [2014] RA 23 Kenya Aid Programme v. Sheffield City Council [2013] EWHC 54 (Admin) Div, [2014] QB 62 R (o a o) Prideaux v. Buckinghamshire CC [2013] EWHC 1054 (Admin) R (o a o Baggus) v. Forest of Dean DC [2013] EWHC 4394 (Admin)

R (o a o Gibson) v. Harrow DC [2013] EWHC 3449 (Admin) Makro Properties Limited v. Nuneaton & Bedworth BC [2012] EWHC 2250 (Admin) Vale of Whitehorse DC v. Secretary of State for Communities and Local Government [2009] EWHC 1847 (Admin) JG Ipswich LLP v. Secretary of State CLG [2009] EWHC 91 (Admin) Webster v. Yorkshire Water Services Ltd [2009] RA 317 R (o a o Batey) v. Boston BC [2008] EWHC 3516 (Admin) UK Coal Mining Ltd v. North Warwickshire Borough Council [2008] EWHC 23 (Admin) R (on the application of Nigel Roberts and others v. Secretary of State for Communities & Local Government [2008] EWHC 677 (Admin) Thames Water plc v. Peter Handcock (VO), Lands Tribunal, 16 September 2008 R (oao Ling (Bridlington) Ltd) v. East Riding of Yorkshire Council [2006] EWHC 1604 (Admin); [2007] J.P.L 396 R (on the application of Leicestershire County Council v. Secretary of State for Communities & Local Government & UK Coal Mining Ltd [2007] EWHC 1427 Baker (VO) v. Citibank NA [2007] RA 93 Persimmon Homes (Wales) Ltd v. Rhondda Cynon Taff CBC [2005] RVR 59 R. (on the application of Wall) v. Brighton & Hove City Council [2004] EWHC 2582; The Times, November 16 2004, QBD (Admin)

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Judicial Review: Practice and Procedure General Update Tuesday 11th November 2014

Presented By Jenny Wigley

Tweet us your Comments and Questions to @No5Chambers

Overview

§  Scope and application of Judicial Review

§  Grounds for Judicial Review

§  Time limits and Procedural Rules

§  Proposed Government changes and progress of Criminal Justice and Courts Bill

Scope and application of Judicial Review

§  A remedy invented by Judges to restrain the excess or abuse of power;

§  Power in the exercise of public functions; §  Not private actions and decisions by public bodies; §  But conversely public functions exercised by private bodies

may be vulnerable to Judicial Review; §  Examples:

- Decisions taken by contracted out bodies; - Decisions of the Law Society, GMC, ASA and National Trust - In addition to obvious examples of Government Departments and Local Government authorities.

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Source and Areas of Power susceptible to JR

§  Typical areas include education, immigration, prison service, housing, community care, welfare benefits, planning and environmental, taxation.

§  Source of power can be primary and/or secondary legislation; common law, EU law or Human Rights law;

§  Power or duty;

§  Distinction from policy

Grounds for Judicial Review

§  Illegality;

§  Irrationality;

§  Procedural Unfairness.

Illegality

§  Beyond limits of powers “ultra vires”; §  Fetter or avoidance of discretion; §  Unlawful delegation of decision; §  Failure to ask relevant questions, obtain necessary

information; §  Material /immaterial considerations (link with policy); §  Material error of fact.

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Irrationality

§  Wednesbury unreasonableness; (Lord Greene Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223, HL)

§  Outrageous in its “defiance of logic or of accepted moral standards” – very high hurdle

§  Usual matters of judgement and weight not challengeable;

§  Onus reversal in interference with Convention rights – legitimate aim and proportionate (eg.Art 8)

Procedural Fairness

§  Breach of expressly stated procedure; §  Reasons; §  Bias and pre-determination (cf Localism Act 2011, s.25) §  Natural justice, Judge in own cause and right to a fair hearing; §  Failure of adequate consultation – eg v.recent SC case -

(Moseley R (ota) v. London Borough of Haringey [2014] UKSC 56

§  Legitimate expectation – Procedural – eg arising out of policy “promise”, statement of community

involvement, loose agreements/ compacts with no contractual force – Substantive – abuse of power, breach of promise

Procedure – Stage 1

§  Who can bring the claim? Sufficient interest (s.31(3) SCA 1981);

§  Identify target of claim – source of power/ legislative provision, decision, action or failure to act;

§  Time limits – promptly and in any event within 3 months; §  Six weeks for some claims – planning and procurement; §  Relevance of “promptly” and delay (permission and relief); §  Extension of time; §  CPR 54 and Practice Directions

venue PD 54D

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§  Pre-action protocol letter §  Identify Defendant(s) and IP(s) – early notice as possible: §  Standard Form recommended (annex A to pre-action protocol) §  Set out basis of case and usually allow 14 days for response,

ask for additional documents/information (duty of candor) §  If relevant, state it is an Aarhus Claim (Part 45.41 – 45.44) §  Response from Defendant – standard form – unambiguously

state whether and extent of any concession; §  Identify any other relevant parties §  Costs implications of non-compliance with PAP

Procedure – Stage 3 – Funding and financial disclosure before permission §  PCO possibilities (but now proposed ban before permission

granted)

§  Provisions in Criminal Justice and Courts Bill re: proposed amendment to s.31 SCA 1981 requiring mandatory disclosure of financial information before permission;

§  And requirement on Court to consider making orders for costs against third parties who are providing financial support to claimants;

§  BUT progress through Parliament now thwarted by House of Lords amendments (27 Oct 2014, 3rd reading 10/17 Nov 2014)


§  Claim Form – standard form, service 7 days after issue; §  Statement of Facts and Grounds; §  Evidence and documents – claim bundle; §  21 days for Acknowledgment of Service and Summary Grounds of

Resistance – costs claim (R (oao Mount Cook) v. Westminster CC [2003] EWCA Civ 1346

§  No provision for Claimant’s “Reply” but frequent practice §  Permission decision on the papers; §  Right to renew orally within 7 days but NB “totally without merit”

consequences; §  Oral permission hearing – who may appear - costs – PD54A 8.6 but

proposed change in Feb 2014 Government’s Response to its consultation on “Judicial Review - Proposals for Further Reform”

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Procedure – once permission granted

§  Defendant and IP :35 Days for detailed grounds contesting claim or supporting it on additional grounds and for any written evidence;

§  Interveners §  Skeleton arguments (“working days” universally ignored”); §  Hearing; §  Judgment and remedy; §  Discretion to refuse substantive relief:

- delay (R v. Criminal Injuries Compensation Board ex p.A [1998] QB 659 – [1999] 2 A.C 330) - if decision would have inevitably been the same/ no different (rarely exercised currently but see proposed changes)

Criminal Justice and Courts Bill

§  What is proposed by Government (1): §  Proposals to prevent judicial review being ‘a brake on growth’

§  Increased financial risks for those seeking JR: §  Requiring applicants to reveal at the outset how their claim is

funded §  Requirement on the court to consider making orders for costs

against third parties who are providing financial support (or could provide financial support);

§  Restriction on the court’s ability to make protective costs orders – only post permission and only where a claimant would otherwise withdraw the claim and would be acting reasonably in doing so.

Criminal Justice and Courts Bill (2)

§  What is proposed by Government (2):

§  Refusal of permission and/or relief where there is a finding that it is “highly likely that the outcome would not have been substantially different” had the error not occurred:

• Lowering of threshold to refuse relief; • Requirement to consider at permission stage if raised by

Defendant; • Removal of Judicial Discretion – requirement to refuse

permission and/or relief if finding of “highly likely”

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House of Lords debate and vote on 24 October 2014 §  Amendments tabled by Lord Pannick; §  Grave concerns expressed about:

- substitution of judicial discretion for judicial straitjacket; - removal of Court’s ability even to make a declaration when unlawfulness occurred; - requiring Court to second case decision maker – detailed review

of what would have happened if def had acted differently - funding and “chilling effect” - discouragement of “valuable contribution” often made by interveners

§  “must” to “may” and other amendments §  Supported by Lord Woolf, Lord Philips, Lord Deben, Baroness

Williams.

House of Lords debate and vote on 24 October 2014 (2) §  Amendments resisted by Lord Tebbitt and a few others; §  Lord Faulks defending Government’s position:

“the courts would not be expected to make an award against a third party who was simply funding the litigation and not seeking substantially to control, influence or benefit from it…. I hope those words will be useful when anyone comes

to interpret this provision should it become law..”

§  Government lost the vote on almost all the amendments (except the one which would have maintained ability to make cost capping orders before permission granted – vote was after dinner break..)

What next?

§  House of Lords 3rd reading on 10/17th November;

§  Back to Commons for consideration of HL amendments;

§  “Ping pong” and/or Parliament Acts

§  Almost certainly will not now become law before the election and could be a “knock out” blow for Government.

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Judicial Review – Practice and Procedure Introduction and Update Thank You For Listening

Presented By Jenny Wigley +44 (0) 845 210 5555 [email protected]


James Corbet Burcher Judicial Review/High Court Challenges


James Corbet Burcher is a specialist public/administrative law and planning/environmental law practitioner. James graduated from Magdalen College, University of Oxford with a first-class degree in Modern History and completed the Graduate Diploma in Law (with Distinction) at City University and an LLM specialising in Environmental and Public Law (with Distinction) at University College London, before undertaking the Bar Course and pupillage. He has since developed a strong practice within public/administrative law, combining court, tribunal and advisory work, acting for both claimants and public body defendants. Practice Scope His recent work has been concentrated on immigration/asylum law (including acting for an individual subject to a deportation order (with James Dixon)) and the medical/healthcare sector (including regulatory/disciplinary proceedings with David Lock QC).

James has experience of a wide range of public law matters, including immigration and asylum, mental health, social security, war pensions, care standards, local authority standards, broadcasting regulation, public protest, inquests.

In addition to the above, he is currently instructed on a number of judicial review and statutory challenges in the planning/environmental context (see Planning/Environmental CV).

As a pupil, he assisted with public law litigation (both research and drafting) at all levels from the First-tier Tribunal to the Supreme Court. He also gained substantial experience of advisory work, especially to various Government departments as pupil to two Treasury A Panellists.

Other Experience

Before studying law, James worked full-time for a year as an Adviser with the Citizens Advice Bureau. He developed a good understanding of social security matters, including representing clients at tribunal. He is a qualified Free Representation Unit Social Security representative, and has continued to conduct a number of social security appeals during full-time practice.

During his LLM (with Distinction) from UCL, James participated in the UCL Human Rights Moot Final in the Strasbourg Grand Chamber, before three Judges of the European Court of Human Rights.

In Spring 2013, James went on secondment for several days a week with the legal department of Telford and Wrekin Borough Council. This experience has grounded much of his work for both local authorities and private sector clients, giving him a good understanding of the practical realities of acting both on behalf of and against local authorities. Other Interests Outside work, his interests include contemporary British urban history and architecture, theatre, film, and long-distance running. At Oxford, he won a Half-Blue in Modern Pentathlon and led a team to victory in the Varsity Match. QUALIFICATIONS

BA(Hons) Modern History (First Class), Magdalen College, University of Oxford

CPE (Distinction), City University

LLM (Distinction), University College London

BPTC, BPP (London)

AWARDS University: College Scholarship Lincoln’s Inn: Hardwicke Entrance Award Lord Bowen Scholarship Lord Mansfield Scholarship Sunley Pupillage Award MEMBERSHIPS ALBA UKELA NOTABLE CASES Cases worked on during pupillage include:

R (Abbassi/Munir) and (Alvi) v Secretary of State for Home Department [2012] UKSC 32 and 33: test cases concerning the requirement to lay changes to the Immigration Rules before Parliament under s. 3 of the Immigration Act 1971

City of London v Samede [2012] EWHC 34; [2012] EWCA Civ 160: eviction of Occupy London protest camp from St Paul’s Churchyard, involving consideration of Articles 10 and 11 ECHR

R(London/Premier Christian Radio) v Secretary of State for Culture, Olympics, Media and Sport [2012] EWHC 1043 (Admin): defence of judicial review challenge to the ban on political advertising under ss. 319 and 321 of the Communications Act 2003

YF (China) v Secretary of State for Home Department [2012] EWCA Civ 77: defence of appeal against Upper Tribunal ruling concerning the risk of re-prosecution and death penalty sentence following deportation to China

R (Hussain) v Secretary of State for the Home Department [2012] EWHC 1952 (Admin): judicial review of the secretary of state's decision to refuse indefinite leave to remain to one of the Iraqi hijackers of an aeroplane forced to land in the UK in 1996 R (Arslan) v Secretary of State for the Home Department [2011] EWHC 3671 (Admin): judicial review by Turkish citizen of a decision of the defendant refusing him leave to remain under the European Community Association Agreement (the ECAA)

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Disclosure in JR: Looking for the Smoking Gun

Presented By James Corbet Burcher

Overview

§  The Information Availability Continuum: 1) Freedom of Information Act 2000 2) Pre-Action Protocol 3) Judicial Review: The Duty of Candour

Practicalities Five key stages to litigation Team members assume different roles at different stages 1- Strategy/Pre-Application 2- The Decision Stage 3- Pre-Action Protocol 4- Claim 5- The Hearing

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The Freedom Of Information Act

§  The Freedom of Information Act 2000

§  Preamble: “Provision for the disclosure of information held by public authorities or by persons providing services for them”

§  Cf. Data Protection Act & 1998 Environmental Information Regulations 2004.

§  Public Authorities (‘PA’) (s3): Sch 1: Public Authorities; s6: publicly-owned companies (s6); Sch 5: executive agencies

§  Basic Concept: General right of access with specified exemptions

Operation Of Foia

§  Under section 8(1) an applicant must make a written “request for information” which describes the information requested.

§  Practical constraints on operation of scheme include: payment of fee

under s9 and time limit 20 days under s9 §  Formal constraints include where: §  s2: information is exempt, §  s12: the cost limit for compliance is exceeded §  s14: repetitious/ vexatious requests

Absolute And Qualified Exemptions

§  Absolute and Qualified Exemptions (1)Where any provision of Part II states that the duty to confirm or deny does not arise in

relation to any information, the effect of the provision is that where either— (a)the provision confers absolute exemption, or (b)in all the circumstances of the case, the public interest in maintaining the exclusion of

the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information, section 1(1)(a) does not apply.

(2)In respect of any information which is exempt information by virtue of any provision of

Part II, section 1(1)(b) does not apply if or to the extent that— (a)the information is exempt information by virtue of a provision conferring absolute

exemption, or (b)in all the circumstances of the case, the public interest in maintaining the exemption

outweighs the public interest in disclosing the information.

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Absolute And Qualified Exemptions

§  Absolute Exemptions §  (a)section 21: Information available by other means §  (b)section 23: Information supplied by, or relating to, bodies dealing with security

matters. §  (c)section 32: Court records §  (d)section 34: Parliamentary privilege §  (e)section 36 so far as relating to information held by the House of Commons or the

House of Lords: Prejudice to effective conduct of public affairs. §  (ea)in section 37, paragraphs (a) to (ab) of subsection (1), and subsection (2) so far

as relating to those paragraphs,]: Communications with Her Majesty, etc. and honours.

§  (f)in section 40— (i)subsection (1), and (ii)subsection (2) so far as relating to cases where the first condition referred to in that subsection is satisfied by virtue of subsection (3)(a)(i) or (b) of that section: Personal information.

§  (g)section 41: Information provided in confidence §  (h)section 44: Prohibitions on disclosure

Information Comissioner/ Information Tribunal §  Under s17, the PA must send a notice to the applicant providing

reasons §  Part IV: Information Commissioner: power to serve enforcement

notices §  Part V: Information Tribunal appeals from decisions of

Commissioner §  s53 Exception from duty to comply with decision notice or

enforcement notice: see Regina (Evans) v Attorney General [2013] EWHC 1960 (Admin); [2014] EWCA Civ 254

Judicial Review

§  Judicial Review (s31 Senior Courts Act 1981, Part 54 CPR) §  CPR, r54.16: (1) Rule 8.6 (1) does not apply. (2) No written evidence may be relied on unless – (a) it has been served in accordance with any – (i) rule under this Section; or (ii) direction of the court; or (b) the court gives permission.

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What Is The Role Of Part 31?

§  Disclosure is governed in conventional civil litigation by CPR, Part 31

§  However in Judicial Review, disclosure is led by the Pre-Action

Protocol and litigation correspondence (see Tweed v Parades Commission [2006] UKHL 53; [2007] 1 AC 650)

§  But Part 31 continues to guide the disclosure exercise: §  Meaning of disclosure §  31.2 “A party discloses a document by stating that the document

exists or has existed.”

Cpr, Part 31

§  Right of inspection of a disclosed document §  31.3 “(1) A party to whom a document has been disclosed has a

right to inspect that document except where – §  (a) the document is no longer in the control of the party who

disclosed it; §  (b) the party disclosing the document has a right or a duty to

withhold inspection of it; [and additional stated exceptions] §  Meaning of document §  31.4 “In this Part – §  ‘document’ means anything in which information of any description

is recorded; and §  ‘copy’, in relation to a document, means anything onto which

information recorded in the document has been copied, by whatever means and whether directly or indirectly.”

Standard Disclosure

§ Standard disclosure – what documents are to be disclosed § 31.6 “Standard disclosure requires a party to disclose only– § (a) the documents on which he relies; and § (b) the documents which – § (i) adversely affect his own case; § (ii) adversely affect another party’s case; or § (iii) support another party’s case; and § (c) the documents which he is required to disclose by a relevant practice direction.”

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The Duty Of Search

§ Duty of search § 31.7 “(1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c). § (2) The factors relevant in deciding the reasonableness of a search include the following – § (a) the number of documents involved; § (b) the nature and complexity of the proceedings; § (c) the ease and expense of retrieval of any particular document; and § (d) the significance of any document which is likely to be located during the search.”

The Pre-action Protocol Letter

§  9 The details of any information sought §  (Set out the details of any information that is sought. This may

include a request for a fuller explanation of the reasons for the decision that is being challenged)

§  10 The details of any documents that are considered relevant

and necessary §  (Set out the details of any documentation or policy in respect of

which the disclosure is sought and explain why these are relevant. If you rely on a statutory duty to disclose, this should be specified)

The Pre-action Protocol Response

§  5 Response to the proposed claim §  (Set out whether the issue in question is conceded in part, or

in full, or will be contested. Where it is not proposed to disclose any information that has been requested, explain the reason for this. Where an interim reply is being sent and there is a realistic prospect of settlement, details should be included)

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The Request

§  “Ground 1: Any correspondence with [X], other groups or the Secretary of State in relation to this application;

§  If no such correspondence was sent, an explanation with evidence, including copies of any internal notes, minutes of meetings, electronic records, or any other documentary material demonstrating what consideration if any was given to the requirements of the [Act]and the [Guidance] to notify external bodies;

§  Any [Guidance] which was consulted, and evidence of any internal procedures which are followed to determine [applications]. In particular, evidence that [evidence] was examined to determine whether the duty to notify is engaged, and evidence that this was actually carried out in this particular case, including details of the individual involved, their qualifications, and relevant dates;”

Pre-action Protocol Realities

§  Time Constraints §  Staffing Issues §  Volume of Information §  Format/Organisation §  Multiple correspondents §  Transfers of information §  Legal Privilege §  Making copies §  Colloquialism/Informality §  Access to Counsel §  The Duty of Candour

Judicial Review: The Traditional Position

§ The Duty of Candour § Belize Alliance v Department of the Environment [2004] UKPC 6; R (Quark Fishing) v SS Foreign & Commonwealth Affairs [2002] EWCA Civ 1409, [50] and R v Lancashire CC, ex p Huddleston [1986] 2 All ER 941 “it is a process to be conducted with all the cards face up on the table” § Duty owed by claimants (eg R (I) v Secretary of State for the Home Department [2007] EWHC 3103 (Admin), Collins J at paras 8 & 10-11) BUT the duty weighs most heavily on defendants

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Specific Disclosure

§  Traditionally: no general duty of inspection, disclosure etc. in judicial review unlike other civil litigation;

§  Orders for specific disclosure in judicial review were rare:

generally only ordered where it was shown that the defendant’s evidence was inaccurate, inconsistent or incomplete: see e.g. R v SSE, ex p Islington BC [1997] JR 121 at 126 and 128 – 129 and R v Secretary of State for Foreign & Commonwealth Affairs, ex p WDM [1995] 1 WLR 286 at 396.

The Duty Of Candour: Tweed

§  Tweed v Parades Commission [2006] UKHL 53; [2007] 1 AC 650

§  “Where a public authority relies on a document as significant

to its decision, it is ordinarily good practice to exhibit it as the primary evidence” (Lord Bingham, para 4).

§  It should not be necessary for the claimant, seeking sight of a

key document summarised in the defendant’s evidence “to suggest some inaccuracy or incompleteness in the summary” as this is “usually an impossible task without sight of the document” and “it is enough that the document itself is the best evidence of what it says” (Lord Bingham, para 4)

More Flexible/Less Prescriptive Principle

§ If a key document is not exhibited because of concerns over volume or confidentiality: “The judge to whom application for disclosure is made must then rule on whether, and to what extent, disclosure should be made” (Lord Bingham, para 4). § “A more flexible and less prescriptive principle, which judges the need for disclosure in accordance with the requirements of the particular case, taking into account the facts and circumstances” should be substituted…

8

The Duty Of Candour §  …for the pre-existing “approach to disclosure in judicial review

which is more narrowly confined than in actions commenced by writ” and the “restrictive rule” on which this approach is based whereby disclosure aimed at challenging the accuracy of affidavit evidence is refused as improper “unless there is some prima facie case for suggesting that the evidence relied upon by the deciding authority is in some respects incorrect or inadequate” (Lord Carswell, paras 29 and 32; Lord Brown, para 56).

§  The test will remain “whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly” and “whether it is necessary for fairly disposing of the case to order disclosure of such documents” (Lord Bingham, para 3; Lord Carswell, para 38).

Tweed In Action: Disclosure Causes Celebres § R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 1687 (Admin) (“the July judgment”) and [2009] EWHC 2387 (Admin) (“the October judgment”). § R (Shoesmith) v Ofsted [2010] EWHC 852

§ R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 56

Government Guidance

§  Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings – Treasury Solicitor (2010)

§  Golden Rules for conducting a disclosure exercise §  The litigation case-handler must have overall responsibility for the

disclosure exercise §  Take steps to preserve all potentially relevant documents as soon as

proceedings are likely §  Start early. At the outset formulate, record and implement a strategy

for conducting the disclosure exercise based on an understanding of the issues in the case and knowledge of the systems for record-keeping

§  Maintain a record of what has been seen and by whom and the decisions taken

9

Government Guidance

§  A document which is disclosable must be disclosed even if it is embarrassing or damaging to a party's case

§  Before giving inspection look at the output of the disclosure exercise in the same way as the claimant will look at it - look to see what is there and what is not there

§  Devote sufficient resources from the outset to ensure that the process can be, and is, conducted on time and properly

The Litigation Landscape: Planning

§  Tesco Stores v Dundee Stores [2012] UKSC 13 and the increased supervisory role of the court

§  Requests for

information on internal reports, data collection, correspondence, viability, financial data, policy changes and draft reports

Recent Cases § R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2013] EWHC 3164 (Admin), [70]-[71]: “flesh on the bones” § Sky Blue Sports & Leisure Ltd v Coventry City Council [2013] EWHC 3366 (Admin), [23]-[27]: necessary in order to resolve the matter fairly and justly” at the permission stage § R (Perry) v Hackney LBC [2014] EWHC 1721 (Admin), [23]-[36]: disclosure of un-redacted viability assessment and related documents

10

Where Next?

Disclosure in JR: Looking for the Smoking Gun

Presented By James Corbet Burcher + 44 (0) 845 210 5555 [email protected]

Claire van Overdijk Judicial Review/High Court Challenges


Claire’s practice encompasses all areas of administrative law, human rights and civil liberties. Claire’s mixture of commercial and public law expertise means that she is practitioner who is apt at lateral thinking and providing sound commercial advice in a public law context. She is recognised as an approachable individual who offers a balance between pragmatic advice and meticulous preparation. Specific areas of Claire’s public and administrative law practice include: Healthcare, Mental Health and Community Care: Claire’s represents local health and social services authorities, primary and hospital care trusts, central government and families of individuals who lack capacity or with mental health issues and in this field. Claire advises on all aspects of this area of law including the use of eligibility criteria for access to various health and social services; charging for services; nursing and residential care homes; confidentiality and access to medical records; decision-making for patients lacking capacity; and disciplinary and regulatory disputes. Human Rights and Civil Liberties: Claire regularly acts in civil damages claims against government institutions and private companies with a human rights or public law element. She also advises and represents individuals in complaints to the IPCC and in civil actions against the Police. Court of Protection: Claire advises and represents the Official Solicitor, local authorities and individuals in contentious and non-contentious matters in this jurisdiction. Her practice involves the appointment and discharge of receivers and deputies, variations of trusts, the making of statutory wills and gifts, the registration of enduring powers of attorney and lasting powers of attorney, and objections to such registration. Claire also represents and advises in all aspects of health and welfare matters before the Court including the deprivation of liberty safeguards. Claire is qualified to accept direct access instructions. While on the Attorney-General’s Panel Claire has advised various central government departments and appeared on their behalf in a variety of areas ranging from data protection, health care, immigration, inquests, insolvency, prisons, regulatory matters, tax and VAT disputes. Other Experience: Claire has worked as a local authority housing lawyer and is therefore very familiar with housing law, in particular homelessness appeals.

Research and Academia: Member of University College London, Faculty of Law. Areas of teaching: 2013 (on-going): International Commercial Litigation (LL.M) 2008-2013: Public International Law (LL.B) Prior to joining the Bar, Claire was a Research Fellow for the Organisation for Security and Co-operation in Europe where she undertook research in public international law and assisted in the drafting of legal documents and instruments on the subject. Languages: Portuguese & Spanish- good working knowledge (written and spoken) Publications: Claire is co-editor of Court of Protection Practice 2012 published by Jordan The Hague Convention on the International Protection of Adults and its implementation into the Private International Law of England & Wales Court of Protection- Practice and Procedure- No5 Seminar, June 2010 Prison Law- Practice and Procedure- No5 Seminar, June 2009 QUALIFICATIONS July 2003 Called to the Bar 2002-2003 BVC 2000-2001 Leiden University, Netherlands LL.M Public International Law 1997-2000 University College London, LL.B (Hons) 2:1 APPOINTMENTS In 2014 Claire was appointed by the Attorney-General to the London C Panel of Junior Counsel to the Crown. Prior to this Claire was appointed to the A-G’s Regional (Midlands) Panel of Junior Counsel to the Crown during which time she advised and represented various central government departments in a variety of areas ranging from data protection, health care, immigration, inquests, insolvency, prisons, regulatory matters, tax and VAT disputes. MEMBERSHIPS Administrative Law Bar Association American Society of International Law Human Rights Lawyers Association International Law Students Association (Board of Directors) Society of Trust and Estate Practitioners (STEP) (full member)

NOTABLE CASES R (on the application of Flinders) v Secretary of State for Justice [2008] EWHC 3194 (Admin) The Court found a failure of the Secretary of State for Justice to provide psychiatric and psychological reports which had been requested by the Parole Board resulted in a breach of a prisoner's rights under the European Convention on Human Rights 1950 art.5(4) because the Parole Board was unable to assess whether it was necessary to confine the prisoner for the protection of the public Claire represented the claimant prisoner as junior counsel. R (on the application of JONES) v NOTTINGHAM CITY COUNCIL [2009] EWHC 271 (Admin) The Administrative Court had no power to reconsider a decision on costs made on the papers in accordance with the terms of a consent order. A party dissatisfied with such a decision would have to appeal to the Court of Appeal. Claire represented the Defendant local authority.

Philip Dayle Judicial Review/High Court Challenges

Year of Call: 2012 (Jamaica: 1996) Clerks Senior Practice Manager Abdul Hafeez Practice Group Clerks Mark Byrne James Harte Craig Wain Practice Director Tony McDaid Contact a Clerk Tel: +44 (0) 845 210 5555 Fax: +44 (0) 121 606 1501 [email protected]

Called to bar 22 November 2012 - Grays Inn Call to the bar in Jamaica, 1996 Philip has years of experience working as a barrister in crime in Jamaica and as an international human rights lawyer at the Inter- American Commission on Human Rights (IACHR) in Washington DC, USA; the International Commission of Jurists (ICJ) in Geneva, Switzerland; the Human Dignity Trust (HDT) in London; and as a legal consultant for inter-governmental organisations such as UNAIDS and various NGOs in the Caribbean and Africa. He has also worked at a prominent civil liberties firm in London on a range of public and administrative law matters, including on issues of national security; inquests and actions against the police and public authorities. Philip accepts instructions in administrative and public law arising from criminal justice, prison, healthcare, education and information sectors. Philip is a Guardian Law contributor on issues concerning sexual orientation, HIV/AIDS, article 8 and 14 of ECHR, international human rights law and international justice. He speaks conversational French. Examples of Work Community Care • Advised and acted for a claimant in successful urgent judicial

review application and permission hearing in respect of a “child in need” of accommodation and support;

• Advised prospective “child in need” claimant in potential claim for accommodation and support;

• Drafted judicial review claim against local authority for cessation of direct payments in respect of severely autistic claimant

Mental Health • Acted for local authority in removal of “nearest relative” under the

Mental Health Act • Advised mentally disordered claimant on steps and damages in

relation in an action against the police;

Criminal Justice • Advised claimant on claim against the police for malicious

prosecution and false imprisonment in circumstances where the criminal charges against the putative claimant were aborted because of interference by family members of the putative claimant/defendant.

• Advised on successful judicial review claim for the reversal of a decision of the Criminal Injuries Compensation Authority (CICA) to compensate a victim of rape in the Social Entitlement Chamber;

• Advised in successful claim for trespass and battery at the Central London County Court, concerning animal rights; protestors, who argued that police action pursuant on s14 of the Public Order Act was unlawful;

• Advised claimant on a part 36 settlement offer in a case against the police for trespass where one of the victims was a minor.

Information and Data protection Philip accepts instructions in matters related to Freedom of Information Act 2000 (FOIA), Data Protection Act 1998 1998 (DPA) and related matters involving information rights. Prizes Philip has been awarded the following prizes: • British Chevening Scholarship, 2000 • Suffolk and North Essex Law Society (SNELS) for 1st place on the

masters or Law (LL.M) 2000-01 programme, Essex University QUALIFICATIONS Bar Transfer Test (BTT), 2012 Masters of Law (LLM) in International Human Rights law (Distinction), Essex University, 2002 Legal Education Certificate (Jamaican Bar Vocational course), Norman Manley Law School, 1996 Bachelor of Laws (Honours) 1993, University of the West Indies, 1993 MEMBERSHIPS Association of Regulatory and Disciplinary Lawyers (ARDL)

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R (on the application of Evans) v Attorney General [2014] EWCA Civ 254

Court of Appeal (Civil Division) 12 March 2014

Factual and legal context

1. The appellant journalist (E) appealed against a decision concerning his request,

under the Freedom of Information Act 2000 (“The Act”) and the Environmental

Information Regulations 2004 (“The Regulations”), for disclosure of a number of

written communications between the Prince of Wales and various government

departments.

2. The Government had refused to disclose the information which E sought and the

Information Commissioner had upheld that refusal. However, the Upper Tribunal

had ruled that communications should be disclosed to the extent that they fell

into a category of correspondence in which the Prince of Wales advocated

certain causes which were of particular interest to him, including

environmental causes.

3. As an "accountable person" within s 53 (8) of the Act, the Attorney General issued a

certificate under s 53(2), purporting to override the decision of the Upper Tribunal on

the basis that the government departments had not failed to comply with s 1 (1)

(b) of the Act and reg 5 of the Regulations. .

4. Section 1 (1) of the FOIA provides:

“Any person making a request for information to a public authority

is entitled—

(a) to be informed in writing by the public authority whether it holds

information of the description specified in the request, and

(b) if that is the case, to have that information communicated to

him.”

5. Regulation 5 stipulates that “a public authority that holds environmental information

shall make it available on request.”

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6. Section 53 (2) confers a power on an “accountable person” to override certain

decision notices or enforcement notices served under the FOIA. It provides that a

notice:

“shall cease to have effect if, not later than the twentieth working

day following ‘the effective date’, the accountable person in

relation to that authority gives the Commissioner a certificate

stating that he has on reasonable grounds formed the opinion that,

in respect of the request or requests concerned, there was no

failure falling within subsection (1) (b) [ie a failure to comply with

section 1 (1) (a) or (b)].”

7. The EU law aspect of this case was constituted of assessments against the

Environmental Information Directive 2003/4/EC (“The Directive”) and article 47 of the

EU Charter of Fundamental Rights (“the Charter”).

8. Article 6 is of the Directive states that:

“1. Member States shall ensure that any applicant who considers

that his request for information has been ignored, wrongfully

refused (whether in full or in part), inadequately answered or

otherwise not dealt with in accordance with the provisions of

Articles 3, 4 or 5 , has access to a procedure in which the acts or

omissions of the public authority concerned can be reconsidered

by that or another public authority or reviewed administratively by

an independent and impartial body established by law……

2. In addition to the review procedure referred to in paragraph 1,

Member States shall ensure that an applicant has access to a

review procedure before a court of law or another independent

and impartial body established by law, in which the acts or

omissions of the public authority concerned can be reviewed and

whose decisions may become final….

3. Final decisions under paragraph 2 shall be binding on the public

authority holding the information. Reasons shall be stated in

writing, at least where access is refused under this Article.”

9. Article 47 of the Charter provides:

“Everyone whose rights and freedoms guaranteed by the law of

the Union are violated has the right to an effective remedy before

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a tribunal in compliance with the conditions laid down in this

Article.

Everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

previously established by law….”

10. E sought judicial review of that certificate and the Divisional Court refused his claim.

His appeal was against the Divisional Court's refusal to grant judicial review. The

issues were:

(i) whether the Attorney General had failed to show "reasonable

grounds" for his opinion contrary to s.53(2) of the Act;

(ii) whether the issue of a s.53 certificate to override a decision of the

Upper Tribunal was compatible with the Directive and the Charter of

Fundamental Rights of the European Union art.47;

(iii) if not, whether the unlawfulness of the Attorney General's decision

relating to environmental information tainted the entirety of his

certificate.

11. The Court of Appeal allowed the appeal and the s 53(2) certificate was quashed in its

entirety.

Court’s reasoning

Reasonableness

12. The Court of Appeal found that what constituted "reasonable grounds" had to be

determined objectively, depending on the context. In the instant case, the Attorney

General:

(i) disagreed with the decision of the Upper Tribunal, on a question which the

Upper Tribunal had examined in meticulous detail after a six-day hearing

during which it heard extensive evidence;

(ii) did not have any additional material and it had not been suggested that the

Upper Tribunal had made any error of law or fact.

The Upper Tribunal's decision was a reasonable one. It was not reasonable for an

accountable person to issue a s.53 (2) certificate merely because he disagreed with

the tribunal's decision. Something more was required, such as a material change of

circumstances.

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The EU law point

13. Section 53(2) of the Act was incompatible with art.6 (2) and art.6 (3) of the Directive

in so far as the information which was the subject of a decision notice was

environmental information. The natural and ordinary meaning of art.6 (2) and art.6 (3)

was clear. The existence of a right to judicial review of a s.53 (2) certificate was not

sufficient to meet the requirements of art.6 (2). A judicial review of the certificate of

an accountable person was substantively different from a review by a court or other

independent body (“That difference is not a mere matter of form” para 55). The focus

of the two reviews was different. The direct and central question on a judicial

review was not whether the public authority failed to act in accordance with its

duties under the Act and the Regulations, but whether the accountable person

had reasonable grounds for forming the opinion that the public authority had

not failed so to act.

14. Further, where a Member State provided a procedure in accordance with art.6 (2), it

was incompatible with art.6 (3) for that state to confer on the executive a right to

override a decision made in accordance with that procedure. Such a right would

necessarily mean that the decision was not final and binding. Anyone whose EU law

rights were violated had the right to an effective remedy before a tribunal which

complied with art.47 of the Charter. By art.52, the scope of that right was equivalent

to the right of access to a court under the European Convention on Human Rights

1950 art.6. The principle of legal certainty required that a court decision was final and

binding. That principle could be infringed by the act of an official or by another court.1

Consideration of the evidence

15. There was also an issue in relation to equality of arms because a tribunal decision

could be set at nought by an accountable person provided only that he had on

reasonable grounds formed the opinion that there was no failure falling within s.53 (1)

(b).

1 The cases of Ryabykh v Russia (52654/99) (2005) 40 E.H.R.R 25 and Borshchevskiy v Russia (14853/03) were applied. In Ryabykh, the ECtHR said (para 51) that one of the fundamental aspects of the rule of law is the “principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question”. Legal certainty presupposes respect for the principle of finality of judgments: “the mere possibility of two views on the subject is not a ground for re-‐examination” (para 52) – wording which had particular resonance for the AG’s reasons for intervening. The ECtHR also said that the right of a litigant to a determination by a court would be illusory if a state’s legal system allowed a judicial decision which had become final and binding to be quashed by a higher court on an application made by a State official (para 56).

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16. The Attorney General had dealt with the environmental information and the non-

environmental information separately. However, he had not explicitly addressed the

question of how the competing public interests should be weighed in relation to the

non-environmental information if it was necessary to disclose the environmental

information in any event. There was nothing in his statement of reasons to indicate

that he was of the opinion that the non-environmental information should be withheld

even if the environmental information was to be disclosed.

Conclusion

17. The case is listed to be heard on the Supreme Court, on appeal of the Attorney

General, on November 24-25.

Philip Dayle

No5 Chambers

+ 44 (0) 845 210 5555

[email protected]

Health and Social Care

The Care Act 2014: What Happens Now?Continuing Healthcare: An Overview

Laura Davidson, Nageena Khalique & Mike O’Brien

Breakout SessionOption 1

Judical Review Seminar

Laura Davidson Judicial Review/High Court Challenges


"An extremely confident advocate who is endlessly energetic." "A tough opponent who fights hard for her client." Chambers & Partners 2014 "Laura Davidson is a mental health and human rights expert. Sources commend her work for local authorities, and she also acts for trusts, individuals and the Official Solicitor. "Capable and feisty, you are pleased when she is on your side," said one instructing solicitor." Chambers & Partners 2013 "Laura Davidson is praised for the "technical precision" she applies to her instructions, her warm nature and the "tenacity" with which she approaches every aspect of her work. She is a noted authority on mental health and capacity legislation." Chambers & Partners 2012 Laura is instructed in many judicial review applications in healthcare law, particularly in the mental health arena. Her academic background means she is particularly good at untangling the interrelationship between the many statutes in this complex area of law. She represents hospital Trusts, local authorities, the Official Solicitor and patients, giving her an excellent overall view of all parties’ positions – often very useful tactically. In the mental health field, Laura appears at First-tier Tribunals (Mental Health) (usually in complex cases involving restricted patients), and is regularly involved in appeals to the Upper Tribunal. Indeed, she was instructed for the successful nearest relative Applicant in one of the first ever appeals to the Upper Tribunal. She also appeared for the Appellant in the very first appeal to the Court of Appeal from the Upper Tribunal Administrative Appeals Chamber in a mental health matter. Laura's other mental health work includes nearest relative displacement applications, in which she has substantial experience. She carries out inquest work involving psychiatric patients and vulnerable adults involving failed care. For example, she has represented the family of a young learning disabled soldier at an inquest into his death in a week-long jury inquest against the Ministry of Defence. Laura receives regular instructions in habeas corpus applications, largely arising out of defects in detention procedure contrary to the requirements of the Mental Health Act 1983. She also has expertise in cases resisting the disclosure of medical records and Data Protection Act cases. Much of Laura’s work involves human rights, which was the focus of her doctoral studies at Cambridge. For example, she successfully challenged the failure of a London Trust to fund cancer treatment for an elderly patient, resulting in a U-turn and the provision of treatment. She also brought a successful damages claim on behalf of an informal patient subjected to unlawful restraint and forcible injection whilst he visited friends on a hospital ward.

Laura publishes frequent articles as well as regularly lecturing in this field, both through Chambers and more widely. She is happy to provide tailor-made seminars to solicitors’ firms. Laura is one of the Commonwealth Secretariat's legal experts on its roster for the Commonwealth Fund for Technical Co-operation. She is a Consultant for the government of Rwanda, and in 2013 spent seven months drafting the country’s first mental health law. Articles & Publications:- “Statute of Liberty”, S.J. Vol. 155, No.14 , 12th November 2011 (Article on the effect of RB which the Upper Tribunal found that discharge from detention under the Mental Health Act 1983 did not mean discharge from a deprivation of liberty). 'Minor Threat', S.J. Vol 154 No.41, pp.8-9 (Article about Laura's campaign to amend the Mental Health Act 1983 so that a tribunal may order a move to lesser security) “Finding Fault”, S.J. Vol 154 No.33, pp.13-14, 7th September 2010 (Article on the ground-breaking judicial review case, R v Hackney London Borough Council and East London NHS Foundation Trust & the Secretary of State for Health, ex parte TTM [2010] EWHC 1349 (Admin) QBD). Click here to read the full article. “Order of the Day”, S.J. Vol 154 No.30, 3rd August 2010 (Article considering the lack of clarity with respect to the recall and discharge provisions relating to community treatment orders. 'Nearest Relative Consultation and the Avoidant Approved Mental Health Professional', JMHL, Spring 2009, pp.70-80 (Article on three key cases concerning the requirements relating to nearest relative consultations) Author of monthly case summaries for the Institute of Mental Health Law’s e-bulletin (see http://www.davesheppard.co.uk/) “Covert medication”, 158 NLJ, pp.1066-1068, 25.07.08 (Article on the incompatibility between the covert medication of patients detained under the Mental Health Act 1983 and the statutory provisions on treatment without consent) “Mental health and mental capacity: the new overlap”, S.J. Vol.151, No.45, pp.1520-1522, 30th November 2007 (Article on the application of Mental Capacity Act principles to detained patients) “Human rights v. public protection – English mental health law in crisis?”, International Journal of Law & Psychiatry, 25(5) (2002), 491-515 (Article) “Mental Health Law and the Human Rights Act 1998”, Garwood-Gowers, et al (eds.) (2001), Healthcare Law and Practice; The Impact of the Human Rights Act 1998 (London: Cavendish) (Chapters 11 and 12) QUALIFICATIONS Ph.D (Cantab): “An examination of the rights of the mentally disordered in English law in the context of Articles 3 and 5(1) of the European Convention on Human Rights and Fundamental Freedoms” M.Phil (Cantab): “An examination of the rights of the mentally disordered offender in the English criminal justice process: public protection, risk and dangerousness”

LL.M (Cantab): International Human Rights, Environmental Law, International Commercial Litigation (papers), Public Law (Thesis): “The development of international mutual assistance in criminal matters with particular reference to the letter of request” Bar Vocational Course, Inns of Court School of Law Advanced Dip.Law (Distinction) MEMBERSHIPS PNBA NOTABLE CASES RH v South London & Maudsley NHS Foundation Trust and the Secretary of State for Justice (Court of Appeal) [2010] EWCA Civ 1273 (the first mental health appeal to the Court of Appeal from the Upper Tribunal Administrative Appeals Chamber) TTM (By his Litigation Friend TM) v Hackney London Borough Council and East London NHS Foundation Trust & Secretary of State for Health [2010] EWHC 1349 (Admin) QBD (Admin) (Collins J) 11/6/2010 Laura represented the Claimant in this recent ground-breaking case. The Court held that it did not follow that a patient's detention was unlawful even where their admission was unlawful due to the objection of a nearest relative which had resulted in the issue of a writ of habeas corpus. Collins J found that such a detention was not void ab initio, but only became unlawful when the court so declared. The Court found no violation of the right to compensation under Article 5(5) of the ECHR because there had been no breach of Article 5(1), and therefore did not consider the potential incompatibilities under s.6(3) and s.139(1) of the Act. Further, the best interests of the patient could override the requirement in s.12(2) for one of the medical recommendations to be provided by a medical practitioner with previous knowledge of the patient. Permission under s.139(2) of the Mental Health Act 1983 was refused as the AMHP had been neither malicious nor negligent. However, Collins J granted permission to appeal to the Court of Appeal. As a consequence of the decision, no psychiatric patient who is unlawfully admitted may ever gain damages for unlawful detention unless a hospital refuses to act on a writ of habeas. AA v Cheshire and Wirral Partnership NHS Foundation Trust, ZZ and the Secretary of State for Health, Upper Tribunal Decision (2009) UKUT 195 (AAC) (one of the first appeal cases in the Upper Tribunal (Mental Health) in which Laura acted for the successful nearest relative) R v East London NHS Foundation Trust & Hackney London Borough Council, ex parte M [2009] MHLR 154 (successful habeas corpus proceedings arising out of a failure to comply with the admission process under the Mental Health Act 1983). R v South Region MHRT, ex parte B [2008] EWHC 2356 (Admin) (2008) ACD 91 (a judicial review of a Mental Health Review Tribunal on behalf of a patient on the basis of bias/the appearance of bias) R v Cygnet Healthcare & Another, ex parte BB [2008] EWHC 1259 (Admin) [2008] MHLR 106 (a successful habeas corpus application due to a breach of the Mental Health Act 1983) R. v Huntercombe Maidenhead Hospital & Others, ex parte SR [2005] EWHC 2361 (Admin); (2006) ACD 17 (acted for the Official Solicitor in successful expedited judicial review proceedings brought on behalf of a 15 year old patient detained under s.3 of the Mental Health Act 1983)

Nageena Khalique Judicial Review/High Court Challenges


Nageena has an established practice in public and Administrative law. She is instructed regularly for and against local authorities and healthcare trusts and in challenges to the actions of public bodies. She has acted in judicial review proceedings in various areas of law including licensing (specialist licenses), mental health, social care law and inquest law. Nageena was junior Counsel in the smoking ban case where the legality of the Government and Trust policy was challenged by patients in a psychiatric unit both in the Judicial Review proceedings and subsequently the Court of Appeal. Nageena has also advised upon and represented local authorities, health trusts and individuals in respect of matters such as: • Social care obligations and continuing care. • Local government vires, consultation and legality of decision making, recently for example in benefits based charging for the local authority. • Decisions in respect of pathway plans and assessments regarding looked after children. • Decisions relating to drugs, funding and hospital closures. • Decision of a postgraduate body to send an “alert” letter in respect of the performance of a GP. • Exercise of the local authority in the application of its adoption policy. • High Court statutory appeals and more recently Upper Chamber challenges following disciplinary hearings (formerly FHSAA appeals). • Judicial review following the decision of Coroners in complex inquests . • Complex medical decisions before the High Court/ Court of Protection such as withdrawal of artificial nutrition and hydration in patients in a persistent vegetative state. Nageena appears in the High Court, the Administrative Court, the Divisional Court and in various professional regulatory tribunals such as the GMC, GDC, the General Chiropractic Council, First Tier Tribunal, specifically the Health, Education and Social Care Chamber, and the Primary Health Lists, Performers List Panels (PCT), the Care Standards Tribunal and the Court of Protection. She appears in the Court of Appeal on administrative law and healthcare law matters. She has also sat as a Chair to the Panel (PCT hearings and as legal assessor).

APPOINTMENTS Nageena has been appointed as Counsel (Band A) on the Attorney General’s List (Regional Panel) instructed by the Treasury Solicitor.

1

THE CARE ACT 2014 - Overview

Presented By Nageena Khalique: Head of Public Law


Timetable

May 2014 Royal Assent

April 2015 Partial implementation

2016 The Dilnot (cap on care costs) reforms to be implemented

Repeals

Legislation to be repealed

National Assistance Act 1948 Health Services &Public Health Act 1968 Chronically Sick & Disabled Persons Act 1970 (only for adults) Health & Social Services & Social Security Adjudications Act 1983 Disabled Persons (Services, Consultation & Representation) Act 1986 NHS & Community Care Act 1990 Carers Acts Health & Social Care Act 2001 (direct payments)

2

Terminology

Adult

Carer

Individual

Principles

Section 1

Well-being – general duty

Dignity?

Independent living?

Well-being Section 1

Wide definition

§  Personal dignity §  Physical health §  Mental health §  Emotional well-being §  Protection from abuse & neglect §  Control over day to day life §  Participation in work, education, training or recreation §  Social and economic well-being §  Domestic, family & personal relationships §  Suitability of living accommodation §  Individual’s contribution to society

3

Must “have regard to”….

§  Views, wishes, feelings & beliefs

§  Avoid development of needs for care and support

§  No stereotyping of individuals

§  Participation

§  Friends & relatives

§  Protecting vs abuse/neglect

§  Restrictions to a minimum

Prevention – Section 2

Services which local authorities “consider” will….

Prevent, delay or reduce need for care & support

Budget issue

Integration with the NHS –section 3

Duty on local authorities to promote integration with health provision…

Better Care Fund www.england.nhs.uk/ourwork/part-rel/transformation-fund/bcf-plan/

Department of Health ‘Better Care fund’ guidance (2013) www.gov.uk/government/publications/better-care-fund

S121 Care Act amends s223B NHS Act 2006 Pool of funds (NHS Commissioning Board pools £ with local authority NHS transfer for 2015 = £3.8 billion

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Information – Section 4

Local authorities will have an enhanced duty information about care and support arrangements

how the care system operates the care and support choices they have how to access support how to raise safeguarding concerns how to access independent financial advice

Duty to promote effective high quality providers - Section 5

Section 5 places a duty on local authorities to promote an efficient / effective local market ‘with a view to ensuring’ that there is a variety of providers and high quality services to choose from.

diversity / quality

§  local authorities to ‘properly take into account the actual cost of care when setting the rates they are prepared to pay providers’.

§  No mechanism in the Act for this §  what will the courts make of the s5 duty?

R (Sefton Care Association) v Sefton Council [2011] EWHC 2676 (Admin) (providers challenged the rates imposed by local authorities)

Co-operation –s6 & s7

Section 6 creates a general duty to cooperate

Section 7 a specific duty when requested by a local authority. s7 based on an existing provision in the Children Act 1989 (s27) and fills a gap.

Section 7 enables social services to request assistance and this must be provided- unless it would be ‘incompatible with its duties, or have an adverse effect on the exercise of its functions’ (and in such a case the body must provide ‘reasons’)

Note: R Northavon DC ex p. Smith 1994 3WLR 403 HL

5

Care and support –section 8 Current community care / carers assessment is to determine whether there is a need for ‘services’.

The Care Act repeals existing community care statutes s8 contains a list what may be ‘provided’ to an adult in need or carer – namely: a) accommodation in a care home or in premises of some other type; b) care and support at home or in the community; c) counselling, advocacy and other types of social work; d) goods and facilities; e) information and advice. Note: absence of such things as ‘adaptations’ ‘travel’, ‘holidays’ (which are cited in the current law)

Local authorities will be able to charge (under s14): for the costs incurred in providing are and support (under s8) to meet the ‘needs’ of individuals

Delegation – section 79

Local authorities are able to delegate their functions under the Act

§  few exceptions (including safeguarding s42 – s47); §  charging (s14)

S79(4) ultimate responsibility rests with LA

Adult social work practice pilots (SCIE 2011 – 14) §  Birmingham (Activ8/Cre8) People with physical disabilities §  (abandoned Sept 2013) §  Lambeth (TOPAZ) Early intervention people with lower level need. §  North East Lincolnshire (NEL) All adults (except mental health). §  Shropshire (People2People) Assessing all adults (except MH). §  Stoke-on-Trent (JMS Homecare) People with long-term §  neurological conditions §  Surrey (FirstPoint) adults with sensory impairments §  Suffolk (Sensing Change) adults with sensory impairments www.scie.org.uk/workforce/socialworkpractice/pilots.asp

6

Charging & assessments –section 14

Future under the Care Act: Local authorities will be able to charge for the cost they incur in providing social care support services. The detail will be set out in regulations. Current law – residential care services: Duty to charge for residential care services (well established guidance (CRAG)) CRAG will cease to apply Note the Dilnot reforms Non-accommodation charges Prohibition on local authorities charging more than ‘reasonably practicable’ for the person to pay has been removed The detail of the new scheme will be in regulations (cf‘Fairer Charging’ guidance)

Assessment of adults in need – section 9 Similar to s47 NHS and Community Care Act 1990). As with the current law

s9 duty is triggered by the appearance of need regardless of the ‘level’ of those needs or the person’s financial resources.

The assessment must have specific regard to the well-being criteria (s1(2)) & must involve the adult and any carer.

An individual is eligible for support if their needs satisfy the ‘eligibility criteria’

The draft ‘eligibility criteria’ regulations make explicit that the decision about whether an adult has eligible needs, is made on the basis that it does not take into account any support that is being provided by third parties (ie carers).

If a person receives support from a carer, this will be taken into account in the care & support plan.

Carers Assessments – section 10 §  The new duty is triggered by the appearance of need §  No longer dependent upon the carer providing regular / substantial care or on

the carer making a request. §  Duty is only owed to adult carers caring for people 18 or over §  BUT provisions for carers of disabled children /young carers in transition into

adulthood(ss58 – 66) §  The Children and Families Act 2014 contains new duties in relation to parent/

young carers §  The Act makes explicit a number of principles including that the assessment

must ascertain: §  whether the carer able / willing to provide and continue to provide the care; §  the impact on the carers ‘well-being’; §  the outcomes the carer wishes in day-to-day life; §  whether the carer works or wishes to (and / or) to participate in education, training

or §  recreation.

§  See also ‘eligibility criteria’

7

Eligibility criteria – section 13 • If individual has needs for care / support then the local authority must decide if these needs

meet the eligibility criteria.• ‘eligibility criteria’ not defined in current legislation: in guidance (FACS20). • Eligibility criteria (for both adults in need and carers) will now be on a statutory footing and the

actual criteria detailed in regulations. • Draft regulations have been issued• For adults in need the criteria are very similar to the current criteria –save only that the‘bands’ (i.e. Critical, Substantial, Moderate and Low) are dispensed with and there is only one criteria – which the person will either meet or not.

• the criteria are based on whether (1)  the person is unable to carry out a basic activity; and (2)  the consequence is a significant risk to that person’s well being.

• For carers the criteria are: • whether as a consequence of providing care the carer is unable to undertake certain key

roles / tasks • or that their health is at significant risk.

Duty/power to provide care & support for adults/carers – sections 18-20 The duty on local authorities to meet the eligible needs of disabled, elderly and ill people is retained and widened by the Care Act. Currently legislation does not apply to self-funders (savings above the capital limit £23,750) and there is only power to meet a carers assessed needs – not a ‘duty’. Both these limitations will be removed: §  Where an individual’s needs (ie a carer or an ‘adult in need’) meet the eligibility criteria then

there will be a duty to ensure their care and support needs are addressed if they are ordinarily resident in the local authority’s area and that if their assets are above the financial limit, that they ‘ask the authority’ to meet their needs.

The Government’s impact assessment considers that this will increase in the number of assessments (for new care users) by between 180,000 and 230,000 in 2016/17 and the number of reviews (for people already receiving care) by between 440,000 and 530,000 in 2016/17 – increasing local authority costs by over £2bn per annum.22

Duty/power to provide care & support for adults/carers – sections 18-20

§  Until the ‘cap on care costs’ comes into force in 2016, the incentive for self-funders to have their care and support needs arranged by the local authority will be limited.

§  Care home residents would however benefit if they are able to get the price of their placement at the local authority rate (rather than the self funder rate) which in itself will have a distorting impact on the market.

§  The main benefits will however flow once the ‘cap on care costs’ comes into effect in April 2016 together with the new capital rules

§  Many adults who may benefit from the cap will want to ensure that their care costs start 1st April 2016.

§  local authorities should ‘consider beginning assessing people who arrange their own care and support from November 2015

8

Cap on costs sections 15-16

§  Dilnot Commission recommended that care costs should be capped at a maximum of £35,000 but the Government has indicated the maximum will be £72,000.26

§  The figure will only apply to social care costs and it is proposed that for residents in care homes, £12,000 pa of their care home fees will be deemed to be for ‘daily living costs’ (ie accommodation, food etc).

§  5½ years for a person paying £25,000 pa care home costs to reach the maximum figure before any benefit from the proposals ( over £135,000 in care costs).

§  In 2016 - changes to the capital limits - rising from the current £23,750 to £118,000 – if a home is included in the calculation – and £27,000 if not.

§  The lower capital limit will rise to £17,000.

Cap on costs sections 15-16

• self funders• Once assessed as having ‘eligible needs’ they will have an account opened by

the local authority

• ‘Dilnot taxi meter’ will start ticking. • The self funder can then purchase their care privately and the local authority will

record this on their ‘care account’ (s29) – having agreed their ‘independent personal budget’ (s28), namely their social care expenditure (ie the amount attributable to ‘daily living costs’ having been deducted).

• disputes / complaints / ombudsman interventions concerning the amount to berecorded

• The Act provides for a new statutory appeals process to deal with (amongst other things) this expected increase (s72). Care accounts will be up-rated for inflationeach year, transferred when the person moves to a new local authority and retained for 99 years (s29(2)).

Deferred payments – sections 34-36

• There will be right to have a deferred payment in relation to aperson’s property

• under the new scheme local authorities will be able to charge interest on the loan and interest on their expenses in creating thecharge to secure the loan.

• Detail is to be provided in regulations – but it appears that the Government intends the right to be limited to people with under £23,750 savings.

9

Care & support for carers –section 20 • Section 20 creates a duty to meet the assessed needs of carers

• The duty rests with the local authority responsible for the adult in need and extends to self-funders (carers with assets above the new maximum limits) whorequest help)

• Section 20(7) makes clear that a local authority may meet some or all of a carer’s needs for support in a way which involves the provision of care and support to the adult needing care –even if the adult has not been held to be eligible for support.

• Section s20(8) states that where the adult is refusing to accept the care (that would address the carer’s need) the local authority must ‘so far as it is feasible todo so, identify some other way in which to do so’.

NHS interface (section 22) A number of amendments were made to the Bill to ensure that the current boundary between local authority responsibilities and the NHS (the so called ‘NHS Continuing Care’ boundary) remained unchanged. section 22 appears to achieve this aim

The Minister has said: §  The provisions in section 22 are not intended to change the current boundary—let

me place that clearly on the record—and we do not believe that they will have that result. The limits on the responsibility by reference, as now, to what should be provided by the NHS remain the same.

§  BUT NOTE provisions in the draft guidance and regulation 2(2)(d) which must be clarified in the consultation process

Care & support plans - section 25-26 §  The current duty to prepare care / support plans for individuals whose needs have been

assessed as eligible is sustained in the new legislation. §  under the new regime every such plan for an ‘adult’ must have a ‘personal budget’ (s25(1)

(e)).

§  In preparing a care / support plan the LA must involve the adult for whom it is being prepared; ‘any carer that the adult has’, and ‘any person who appears to the authority to be interested in the adult’s welfare’.

§  In relation to carers, the requirement is to involve the carer for whom it is being prepared, ‘the adult needing care, if the carer asks the authority to do so’ and any other person whom the carer asks.

§  Section 26 states that the amount of a personal budget is ‘the cost to the local authority of meeting those of the adult’s needs which it is required or decides to meet’.

§  this requirement will be spelled out in the regulations and statutory guidance when published.

10

Direct Payments -sections 31-33

§  The new legislation provides an almost identical ‘direct payments’ regime as at present

§  Details will be in the new regulations.

§  The only significant change is that direct payments will be available for residential care placements.

§  This change is expected to come into force in April 2016.

Continuity of care (portability) - sections 37-38 §  The Act prescribes the way local authorities transfer responsibility for the care and

support of an adult – when she or he moves from one local authority area to another.

§  Sections 37 – 38provide that where a local authority (the 1st local authority) is providing care and support for an adult and another authority (the 2nd authority) is notified that the adult intends to move into their area (and it is satisfied that the intention is genuine) then it must (amongst other things) undertake an assessment of the adult’s needs (and those of any carers they may have).

§  If the assessment(s) have not been completed by the time the adult actually moves, then the second authority must meet the needs identified by the 1st authority (until its assessment is complete).

Safeguarding -sections 42 – 47

§  The Act places on a statutory footing some of the safeguarding obligations that are at present, only located in the guidance (principally the ‘No Secrets’ guidance36).

Section 42 contains the duty to make enquiries if adult with care & support needs: §  Is experiencing, or is at risk of abuse of neglect; and §  Is unable to protect him/herself against the abuse / neglect.

§  No explanation as to what it means by ‘abuse’ – but it includes financial abuse broadly defined as putting the adult ‘under pressure in relation to money or other property’ and/or the adult ‘having money or other property misused’.

§  No new powers to protect adults from abuse §  The Care Act 2014 does however retain the obligation on local authorities to protect property

(s47).

11

Human Rights Protection section 73

§  Section 73 provides that where care or support is arranged by a local authority, or paid for (directly or indirectly, and in whole or in part) by the authority and that care is provided by a registered care provider to an adult or a carer either in their own home or in care home – then the provider is deemed to be a public authority for the purposes of the 1998 Act.

Independent advocacy - section 67

§  Duty on local authorities to arrange independent advocacy if the authority considers an individual would experience ‘substantial difficulty’ in participating their assessment and / or the preparation of their care and support plan.

§  No duty if the local authority is satisfied that there is some other person who is an appropriate representative (provided that person is not engaged in providing care for the individual in a professional capacity or for remuneration).

New statutory appeals process - section 72

§  The Government has stated that it will consult on its proposals and issue draft regulations / guidance later this year (2014), and that the new process will:

1.  be a flexible, local, proportionate system avoiding unnecessary bureaucracy;

2.  include an element of independence from the local authority; 3.  seek to avoid duplication with existing arrangements for

complaints and redress

12

s117 Mental Health Act 1983 - section 74

§  The Care Act inserts a new subsection (5) into the Mental Health Act 1983 to limit services to those: a) ‘arising from or related to the mental disorder’ and b) reducing the risk of a deterioration of the person’s mental condition (ie that

may require re-admission).

§  The Act confirms that ordinary residence for the purposes of s117 is determined by where a person was based immediately before they were detained and gives the Secretary of State power to resolve ordinary residence disputes.

§  It also inserts a new ‘s117A’ that provides for regulations to introduce a limited ‘choice of accommodation’ for persons subject to s117.

Provisions relating to disabled children, young carers and ‘parent carers’

§  Disabled children in transition (sections 59 – 60 Care Act 2014) §  Parent carers in transition (sections 61-62 Care Act 2014) §  Parent carers in general (section 90 Children & Families Act

2014) §  Young carers §  Young carers in transition (sections 63 – 64 Care Act 2014) §  Young carers in general (section 96 Children & Families Act 2014) §  Continuity of support for disabled children / young carers in

transition (section 67)

THE CARE ACT 2014 - Overview

Thank You For Listening

Presented By Nageena Khalique: Head of Public Law +44 (0) 845 210 5555 [email protected]


Mike O'Brien Judicial Review/High Court Challenges

Year of Call: 1987

Clerks

Senior Practice Manager Abdul Hafeez

Practice Group Clerks Mark Byrne James Harte Craig Wain

Practice Director Tony McDaid

Contact a Clerk Tel: +44 (0) 845 210 5555 Fax: +44 (0) 121 606 1501 [email protected]

Mike O’Brien is a former Law Officer and advised the government on legal issues. He was Solicitor General for England and Wales from 2005 to 2007, and served for thirteen years as a Government Minister. This includes being a Home Office Minister and the Minister of State for Health until May 2010. He therefore has an in depth knowledge of how the public sector operates at the national and local level and understands the NHS. He took through the House of Commons new legislation on health, as well as the Human Rights Act, the Freedom of Information Act, two pensions Acts and oversaw implementation of the Data Protection Act. He has lectured and written on the new Health and Social Care Act including conducting in house seminars for specialist firms on the implications of the new law.

Since joining No5 Chambers last year Mike has worked on judicial review cases including on local government and health related matters. He has advised on procurement cases involving in local government and health areas. In addition, he has recently acted in a £30m trust dispute over the ownership of a chain of businesses which was resolved privately and also in series of personal injury claims, including medical negligence.

He recently acted in an internal dispute within a national professional organisation as part of a developing interest in disciplinary and regulatory law.

Mike has a keen interest in Mental Health Act and Mental Capacity Act cases and both advised local authorities and others, as well as lectured on the subject.

Mike initially trained as a solicitor in Birmingham. He was a lecturer in Contract and Business Law from 1981 to 1987 before practicing as a solicitor in London and later the Midlands. He was on his feet in court on a daily basis as a solicitor advocate for some years before being elected to Parliament in 1992. He is a member of Her Majesties Privy Council and was appointed by HM as a Queens Counsel in 2007. He transferred to the Bar and joined No5 Chambers in early 2011.

This gives clients the opportunity to brief counsel with an extensive experience of how the public sector works, as well as the person who brought into the law many important Acts of Parliament. Although he was made a QC in 2007, Mike is currently building up his client base and hence has accepted a wide range of work as a junior because the key thing for him is to attract a range of interesting cases.

MEMBERSHIPS

HM Privy Council

CARE ACT 2014 1. Under the Care Act, local authorities will take on new functions from April

2015 and in some cases from April 2016.

2. The division between NHS Continuing Health care and Social Services careremains but seems blurred under the draft regulations for the Care Act.

3. The idea of the Care Act is to make sure people who live in their areas:

• Receive services that prevent their care needs from becoming moreserious, or delay the impact of their needs;

• Can get the information they need to make decisions about care andsupport;

• Have a range of providers offering a choice of services – market.

4. Local authorities should provide or arrange a range of services which areaimed at reducing needs e.g. helping people regain skills after a spell inhospital.

5. Local authorities also need to provide information and advice about care andfunding options available. They must provide information on:

• What types of care and support are available – e.g. specialised dementiacare, befriending services, reablement, personal assistance, residential care etc.;

• The range of care and support services available to local people, i.e.what local providers offer certain types of services;

• What process local people need to use to get care and support that isavailable;

• Where local people can find independent financial advice about care andsupport.

6. The Act requires local authorities to help develop a market that delivers awide range of care and support services. And to help people make moreeffective and personalised choices over their care.

Who is entitled to Adult public care and support?

7. The Act creates a single, route to establishing an entitlement to public careand support for all adults with needs for care and support. It also creates anentitlement to support for carers, on a similar basis.

8. An assessment of needs and a decision about whether their needs areeligible, including a financial assessment where necessary. This willdetermine whether people need to pay for their own care, and in the future willinclude the new capped costs payment system. Then the decision can thenbe made about whether the adult is entitled to care and support arranged bythe local authority.

9. The Act sets out a new legal duty for an adult’s “eligible needs” to be met bythe local authority, subject to their financial circumstances. Their eligibleneeds are those that are determined after the assessment.

10. The Act says clearly that a person will be entitled to have their needs metwhen:

§ The adult has “eligible” needs;

§ The adult is “ordinarily resident” in the local area (which means their established home is there and;

§ Any of five situations apply to them.

i. The type of care and support they need is provided free ofcharge;

ii. The person cannot afford to pay the full cost of their care andsupport;

iii. The person asks the local authority to meet their needs;

iv. The person does not have mental capacity, and has no one elseto arrange care for them; or

v. When the cap on care costs comes into force, their total careand support costs exceed the cap (£72,000).

11. If a person has a need then the local authority must help the person to makedecisions about how they want their needs to met, and prepare a care andsupport plan.

12. Depending on a person’s finances, a local authority may ask an individual tocontribute towards the costs of their care (up to and including the full amount).In cases where the costs of care would reduce a person’s income below a setlevel, a local authority will pay some of the costs to make sure that the personis left with this minimum level of income.

13. In any other cases, the adult can still ask the local authority, regardless oftheir finances, to arrange their care and support for them. However, they willstill need to pay for their care and support if they have adequate financialresources.

14. If people are due to pay charges for their care and support, they may beentitled to a “deferred payment agreement”, through which they delaycharges, and repay the local authority

The Assessment Process

15. The assessment must be carried out by a trained assessor, normally a socialworker, who will consider a number of factors, such as:

i. The person’s needs and how they impact on their wellbeing – forinstance, a need for help with getting dressed or support to get towork;

ii. The outcomes that matter to the person –for example, whether theyare lonely and want to make new friends;

iii. The person’s other circumstances - for example, whether they livealone or whether someone supports them. The aim is to get a fullpicture of the person and what needs and goals they may have.

DETAIL 16. Section 9 – Assessment of an adult’s needs for care and support

i. The section brings together a number of existing powers and dutiesto create a single legal basis for assessment, including

• s.2 of the Chronically Sick and Disabled Persons Act 1970; • s.4 of the Disabled Persons (Services, Consultation and

Representation) Act 1986 and • s47(1) of the National Health Service and Community Care Act

1990.

ii. After carrying out the assessment, the local authority will thenconsider whether any of the needs identified are eligible for support.Because not all care needs are met by the State, the local authorityuses an “eligibility framework” to decide which needs are eligible tobe met by public care and support.

iii. Where it appears that an adult may have needs for care and supporta local authority shall to carry out a “needs assessment”, to assesswhether a person requires some form of care and support, andwhether the nature of their needs is such that the local authority willbe under a duty to meet them (in other words, whether the personhas “eligible” needs).

iv. Whether or not a person has eligible needs, they will receive“tailored information” on the services available in their localcommunity.

v. Subsection (4) stipulates that the assessment must an individual wishes: for example, being able to live at home and feed themselves, and whether care and support can help them to meet those outcomes.

vi. Subsection (5) requires the local authority to involve the adult, any carer and anyone else the adult may ask to be involved in the needs assessment. Where they do not have anyone to support them, the adult will be entitled to the support of an advocate to assist them (as provided for in section 67).

vii. The regulations require the authority to consider the wider needs of the family of the person (for instance, if there is a young carer).

viii. The regulations will that experts carry out complex assessments e.g. people who are deaf and blind.

ix. A person may also carry out a self-assessment, identifying their needs and outcomes and submit this to the local authority. The local authority may or may not accept it.

17. Determining who has eligible needs?

a. After the assessment, the local authority must determine whether the person is eligible for care and support. This is set out in regulations that set the national minimum threshold for eligibility, which will be consistent across England

b. The person will have eligible needs if they meet all of the following:

• They have care and support needs as a result of a physical or

mental condition;

• Because of those needs, they cannot achieve two or more of the outcomes specified;

• As a result, there is a significant impact on their wellbeing.

c. These outcomes are specified in the regulations, and include people’s

day-to-day outcomes such as dressing maintaining personal relationships, and working or going to school.

18. Section 10 – Assessment of a carer’s needs for support a. This section creates a single duty to assess carers. It requires a local

authority to carry out an assessment, known as a “carer’s assessment”, where it appears that a carer may have needs for support at that time, or in the future. This replaces existing duties in relation to the assessment of adult carers in s. 1(1) of the Carers

(Recognition and Services) Act 1995 and s. 1 of the Carers and Disabled Children Act 2000.

b. A carer is defined as an adult who provides or intends to provide carefor another adult. This definition is subject to the proviso that those whocare on a contractual or volunteering basis are not considered to becarers.

c. A carer’s assessment must consideri. The carer’s ability and willingness to provide care and support,

both now and in the future;ii. The impact of caring on the carer’s wellbeing; andiii. The outcomes that the carer wishes to achieve in day to day life.iv. A carers wish to work, or participates in education, training or

recreation.

19. Section 11 – Refusal of assessmentNormally if an adult refuses a needs assessment or a carer’s assessment, the local authority need not carry it out. However, the section specifies that there are two situations in which the local authority must carry out a needs assessment even if the adult refuses an assessment:

i. If the adult lacks the capacity to agree to an assessment but thelocal authority is satisfied that an assessment would be in their bestinterests;

ii. If the adult is at risk of harm or financial abuse.

20. Section 12 – Assessments under regulations allow the local authority tojointly carry out a continuing healthcare assessment jointly with the NHSbody.

21. Section 13 – The eligibility criteriaa. Having carried out a needs assessment local authorities determine

whether people meet the eligibility criteria which are to be set out inregulations. “Eligible” needs are those needs of a level or naturewhich the local authority may be under a duty to meet. The use of theword “eligible” here refers only to the person’s needs, not to theirfinancial resources or other circumstances.

b. SubS (3) and (4) require the local authority to establish the adult’sordinary residence.

c. Subsection (3)(b) allows individuals who do not want the local authorityto meet their needs to take an independent personal budget (as set outat section 28).

d. Note that the cap on costs does not apply to carers.

e. Subs (6) provides for the Secretary of State to set out the “eligibility framework” in regulations.

f. Subsection (7) specifies that a person’s needs will meet the eligibility criteria if they are of a description specified in the regulations. The regulations will prescribe the minimum level of needs which local authorities must meet, subject to the conditions set out in section 18. Local authorities can decide to arrange services to meet needs at a lower level.

22. Section 14 – Power of local authority to charge This section gives local authorities a general power to charge for certain types of care and support, at their discretion. This general power replaces the existing duty on local authorities to charge for care home accommodation set out in section 22(1) of the National Assistance Act 1948, and powers to charge for other types of care and support (including those under section 17 of the Health and Social Services and Social Security Adjudications Act 1983, and section 8 of the Carers and Disabled Children Act 2000).

a. Subsection (2) provides that the power to charge is subject to section 15. Section 15(1) stipulates that the local authority cannot charge an adult for meeting needs if the adult has reached the cap on care costs; however section 15(7) makes clear that a local authority can still charge for daily living costs. Therefore, even when someone has reached the cap, they still can be charged if their care includes daily living costs.

b. The power to charge extends to all types of care and support, unless regulations state that the specific service must be provided free. Certain services or activities cannot be charged for: for example, needs assessments or carer’s assessments. Subsection (6) gives examples of how regulations might define the provision of care and support to be provided free of charge. These regulations will replace those made under section 15 of the Community Care (Delayed Discharges etc.) Act 2003.

c. Subsection (7) ensures that a person’s income does not fall below a certain amount as a result of charging.

d. Subsection (8) regulations could ensure that a person who receives a certain welfare benefit is automatically exempt from that charge. This helps protect the person’s income while giving greater flexibility to the local authority not to have to carry out a financial assessment where the care package is of low value.

23. Section 15 – Cap on care costs

a. Subs (1) restricts local authorities from charging for eligible care costsonce the amount of a person’s accrued care costs reach the level of thecap - expected to be £72,000. Subsection (4) provides for the level of thecap to be set in regulations and includes power to set the cap at differentamounts for working age adults, and includes the possibility of setting thecap at zero for specified categories of person, for example people whohave eligible needs for care and support when they turn 18.

b. Adults must be ordinarily resident, or present in the local authority area tohave eligible needs.

c. When a person receives care and support in a care home, daily livingcosts such as food and lighting should not count towards an adult’saccrued costs; Subsection (7) allows a local authority to continue tocharge for the “daily living costs” once the adult has reached the cap.

d. The funding provisions are expected to be commenced in April 2016, andeligible care costs will only start counting towards the cap from the date ofcommencement of the sections.

Challenging decisions

The key will be how the Act, and the regulations are dealt with in the more detailed eligibility framework and any decision making tool kit.

The criteria for getting help will be tighter however the viability of Judicial Review of decisions is likely to be easier because of the reduced complexity of the legislation. A lot will depend on the eventual detailed framework and decision-making tool kits provided by the department to local authorities. Does this decision-making framework follow the legislation? How much discretion remains to be allowed to local authority officials? How complex is the decision-making framework? There is a tendency for the regulations to try to cover every eventuality to keep down costs. This can lead to errors in both drafting and decision-making. A major problem at the moment is that the legislation on local authority and NHS continuing healthcare Is piecemeal. The Care Act should simplify and clarify matters to some extent, but there is likely to be plenty of room for challenges in individual cases.

The NHS / Local Authority Divide

NHS Continuing Health Care

• Care at home or in a care home

• Individuals eligibility decided

by primary healthcare need test

• No charges

• Assets and income ignore where care is provided

• Limit set on amount to be paid where care provided

• Top up on care provision should not happen (but not strictly unlawful)

Local authority services

• Care at home or in a care home

• Individual eligibility decided

by needs that are incidental or ancillary to the provision of accommodation (or subject to eligibility criteria for home care

• MUST Charge for residential

care subject to a means test. Self funding if above £23,250 in assessable assets.

• Assets and income taken

into account. May charge for home care. Self funder if more than £23,250 in assessable assets.

• Can set a limit on amount

they will contribute towards care costs when assets drop to £23,250

• Service users and family

frequently top up in order to secure preferred care package.

In the West Midlands the average cost of care home is £513 and the average cost of care homes with nursing is £694 (Source: Laing and Buisson , Care of Older People Market Report 2013/14) NHS Continuing Health Care provides a package of continuing care arranged and funded solely by the NHS. It is provided over an extended period of time to a person aged 18 or over In order to meet their physical or mental health needs which have arisen as a result of disability accident or illness. The NHS should pay for the entire package of care including functions would narrowly regarded as “social care functions”. The person may be at home or in a care home or nursing home. 59,000 people across England get NHS CHC.

Mike O’Brien No5 Chambers +44 (0) 845 210 5555 [email protected]

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Abid Mahmood



Timothy Jones Public Law


Timothy's experience covers: Caravan sites, disabled persons, discrimination (non-employment), Gypsies, Travellers and Travelling Showpeople, housing, human rights, local taxation. NOTABLE CASES & PUBLICATIONS Disabled Persons R v. Bexley London Borough Council ex p. B [1995] C.L.Y. 3225. Discrimination (non-employment) R. v. Bristol City Council ex parte McDonough [1993] C.L.Y 3891; L.A. Law 8/93 2. “The Race Directive: Redefining Protection from Discrimination in EU Law” European Human Rights Law Review, 2003, issue 5. Article on the Race Equality Directive (Bar European Group newsletter, winter 2003-4). Housing, Caravan Sites, Gypsies and Travellers R. v. Hereford & Worcester County Council ex p Smith (T) [1988] C.O.D. 3; R. v. Hereford & Worcester County Council ex p Smith (Tommy) [1994] C.O.D. 129; R. v. Housing Benefit Review Board ex parte Smith (L) 19 H.L.R. 217; R. v. Sandwell Metropolitan Borough Council ex parte Wilkinson 31 H.L.R. 22, [1998] C.O.D. 477, [1998] JHL D80; R. v. South Herefordshire D.C. ex parte Miles 17 H.L.R. 82; South Northamptonshire D.C. v. Power [1987] 3 All E.R. 831, [1987] 1 W.L.R. 1433, 20 H.L.R. 133, C.A. [1988] 1 W.L.R. 319. “Travellers’ Tales” (the impact of the Criminal Justice and Public Order Act 1994 on Romanies), Gazette, September 7th 1994. Contributor “Gypsy and Traveller Law” (Legal Action Group, 2007) Human Rights: European Court of Human Rights Beard v. United Kingdom (Application No. 24882/94) 33 E.H.R.R. 442,; Buckley v. United Kingdom (Application No. 20348/92) 23 E.H.R.R. 101; Burton v. United Kingdom (App. No. 31600/96) 22 E.H.R.R. CD134; Chapman v United Kingdom (Application No. 27238/95) 33 E.H.R.R. 399; Smith (Andrew) v. United Kingdom Application No. 26666/95; Smith (Ruby, John and Tommy) v. United Kingdom Application No. 14455/88; Smith (Ruby) v. United Kingdom Application No. 18401/91; Smith (Jane) v. United Kingdom Application No. 25154/94 33 E.H.R.R. 712; Turner v. United Kingdom (App. no. 30294/96) 23 E.H.R.R. CD 181; Webb v. United Kingdom [1997] E.H.R.L.R. 680.

“The Impact of the European Convention on Human Rights (including the Human Rights Act 1998) and European Union Law upon the United Kingdom” Istanbul Bar Association. Also seminars on the European Convention on Human Rights, the EU Race Directive and UK Human Rights Law for the Council of Europe, US State Department, Slovak Justice Ministry, Association of Judges of the Republic of Macedonia, Bar of Ireland, Istanbul Bar Association. Queen's University Belfast, European Roma Rights Centre. Legal Action Group, Shelter, National Federation of Gypsy Liaison Groups, and Irish, Slovak and Serb human rights NGOs. Local Taxation R. v. Oldbury Justices ex p Smith 159 JP 316; 35 R.V.R. 7; R. v. Sandwell Metropolitan Borough Council ex parte Lyn 34 R.V.R. 126; R. v. Warley Justices ex p. Callis [1994] C.O.D. 240. Other publications Timothy is a co-author of “Gypsy and Traveller Law”, Legal Action Group and is currently taking part in the writing of its third edition. He has been published in both Turkish and Slovak: “The Impact of the European Convention on Human Rights (including the Human Rights Act 1998) and European Union Law upon the United Kingdom” Istanbul Bar Association; and “The Legal Consequences of Not Transposing EU Directives” (Justice Review, Slovakia). QUALIFICATIONS LLB (LSE), FCIArb MEMBERSHIPS Tim is a member of the Planning and Environment Bar Association, the Administrative Law Bar Association and the Compulsory Purchase Association. He is a member of the Bars of England and Wales, Ireland and Northern Ireland. APPOINTMENTS On the Official Panel for Neighbourhood Plan Inspectors

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Housing: Homeless Persons and Review of Accommodation Needs

1. This paper considers some selected topics in the broad (and full of case law)

topic of homeless persons, together with a brief mention of the duty of local housing

authorities to carry out a review of accommodation needs.

A. Duties to Homeless Persons

2. The Housing Act 1996 Pt VII contains the relevant provisions relating to

homeless persons. The main obligation is to secure that suitable accommodation is

available for an applicant who is: (1) homeless; (2) eligible for assistance; (3) in

priority need of accommodation; and (4) who did not become homeless intentionally.

Certain asylum-seekers and persons from abroad are excluded from this duty.

Lesser obligations apply to applicants who do not fulfil one of more of these criteria,

Who is homeless?

3. S 175 of the 1996 Act defines homelessness as:

(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he—

(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court, (b) has an express or implied licence to occupy, or (c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.

(2) A person is also homeless if he has accommodation but— (a) he cannot secure entry to it, or (b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.

(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy…

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4. Subsection (3) covers such matters as domestic violence and the physical

condition of the property. It may be hard proving the latter. For example in R. v South

Herefordshire DC ex p. Miles,1 the Miles family were living in a hut which was

approximately 20 feet by 10 feet and which undisputedly constituted poor

accommodation. It had two rooms, was infested with rats, and no mains services,

although services were available in a nearby caravan. Woolf J held that, although the

accommodation was on the borderline of that which could be in any circumstances

regarded as being capable of being suitable for human habitation, it was not of such

a bad standard that any reasonable authority, having the information available to

them, would have had to disregard it. However, the addition of a baby third child

meant that it was not reasonable of the authority to regard the hut as any longer

capable of being accommodation for the family of which there were by then five

members, one of whom was a newly born baby.

The obligation to enquire

5. S184(1) of the 1996 Act imposes an obligation to enquire into cases of

homelessness or threatened homelessness, providing.

(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves—

(a) whether he is eligible for assistance, and (b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.

6. An LHA that has reason to believe that an applicant may be homeless or

threatened with homelessness must investigate the matter and must accept and

process an application from that applicant. In R (Aweys) v Birmingham City Council,

Collins J stated:

It is apparent that the threshold for the duty of Councils to act under s184 is a low one ... since it arises if they have reason to believe the applicant may be homeless or threatened with homelessness. In the vast majority of cases, the making of the 1 17 HLR 82.

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application will mean that it is difficult if not impossible for the Council not to believe that the applicant may be homeless or threatened with homelessness. Furthermore, no particular form of application is prescribed. This is not surprising since the provisions are dealing with people who are likely to be vulnerable and who cannot be expected to have obtained legal advice or to have an acquaintance with the statutory provisions. If it is apparent from what is said by an applicant (for there is no requirement that an application be in writing) or from anything in writing that he may be homeless or threatened with homelessness, the duty is triggered.2

7. If there is a question of an applicant being at risk of suffering psychiatric harm,

it might well be that the local authority should take that consideration into account,

specifically in deciding what, or what further, enquiries they should make.3

Priority need for accommodation.

8. S189(1) of the 1996 Act provides:

(1) The following have a priority need for accommodation— (a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside; (b) a person with whom dependent children reside or might reasonably be expected to reside; (c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;

(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.

9. In considering s 189(1)(c) “The Council must ask itself whether the applicant

is, when homeless, less able to fend for himself than an ordinary homeless person

so that injury or detriment to him will result when a less vulnerable person would be

able to cope without harmful effects...” 4

Duty to persons with priority need who are not homeless intentionally

2 [2007] EWHC 52 Admin at §8, [2007] HLR 27 – the judgment was overruled, but not in respect of this point, in Birmingham City Council v Ali [2009] UKHL 36, [2009] 1 WLR 1506. 3 Lee v Rhondda Cynon Taf County Borough Council [2008] EWCA Civ 1013, Longmore LJ, § 17. 4 R v Camden LBC ex p Pereira 31 HLR 317 Hobhouse LJ, 330.

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10. The most substantial duty applies to homeless persons with priority need who

are not homeless intentionally. Section 193 of the 1996 Act provides (inter alia):

(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally. (2) Unless the authority refer the application to another local housing authority…, they shall secure that accommodation is available for occupation by the applicant. (3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section. (3B) In this section “a restricted case” means a case where the local housing authority would not be satisfied as mentioned in subsection (1) without having had regard to a restricted person.

(5) The local housing authority shall cease to be subject to the duty under this section if—

(a) the applicant, having been informed by the authority of the possible consequence of refusal or acceptance and of the right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for the applicant, (b) that offer of accommodation is not an offer of accommodation under Part 6 or a private rented sector offer, and (c) the authority notify the applicant that they regard themselves as ceasing to be subject to the duty under this section.

(6) The local housing authority shall cease to be subject to the duty under this section if the applicant—

(a) ceases to be eligible for assistance, (b) becomes homeless intentionally from the accommodation made available for his occupation, (c) accepts an offer of accommodation under Part VI (allocation of housing), or (cc) accepts an offer of an assured tenancy (other than an assured shorthold tenancy) from a private landlord, (d) otherwise voluntarily ceases to occupy as his only or principal home the accommodation made available for his occupation.

(7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal or acceptance and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6. (7A) An offer of accommodation under Part 6 is a final offer for the purposes of subsection (7) if it is made in writing and states that it is a final offer for the purposes of subsection (7).

(7AA) The authority shall also cease to be subject to the duty under this section if the applicant, having been informed in writing of the matters mentioned in subsection (7AB)–

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(a) accepts a private rented sector offer, or (b) refuses such an offer.

(7AB) The matters are– (a) the possible consequence of refusal or acceptance of the offer, and (b) that the applicant has the right to request a review of the suitability of the accommodation, and (c) in a case which is not a restricted case, the effect under section 195A of a further application to a local housing authority within two years of acceptance of the offer.

…

(7F) The local housing authority shall not— (a) make a final offer of accommodation under Part 6 for the purposes of subsection (7); or (ab) approve a private rented sector offer;

unless they are satisfied that the accommodation is suitable for the applicant and that subsection (8) does not apply to the applicant. (8) This subsection applies to an applicant if—

(a) the applicant is under contractual or other obligations in respect of the applicant's existing accommodation, and (b) the applicant is not able to bring those obligations to an end before being required to take up the offer.

(9) A person who ceases to be owed the duty under this section may make a fresh application to the authority for accommodation or assistance in obtaining accommodation…

11. The 1996 Act s.206 deals with the discharge of functions by LHAs. Its

subsection (1) provides: (1) A local housing authority may discharge their housing functions under this Part only in the following ways—

(a) by securing that suitable accommodation provided by them is available, (b) by securing that he obtains suitable accommodation from some other person, or (c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.

12. This raises the question what is suitable accommodation. Suitability is not an

absolute concept. There can be different standards of suitability. There may be

suitable accommodation on the spectrum between ideal accommodation or

accommodation which is just adequate to meet housing needs; but it must be

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recognised that there was a minimum standard or line which has to be drawn below

which the standard of accommodation could not fall and remain suitable.

If the accommodation falls below that line, and is accommodation which no reasonable authority could consider to be suitable to the needs of the applicant, then the decision will be struck down, and an appeal to the resources argument will be of no avail.5

Although the resources and availability of accommodation are relevant factors in determining suitability, there is always a minimum standard in every case below which the duty is not discharged. If the only accommodation available falls below this line then a lack of resources or inability to provide more suitable accommodation is no answer. The housing authority will not discharge its s.193 duty unless and until suitable accommodation is actually provided.6

13. ‘Suitability’ for the purpose of section 193(2) does not imply permanence or

security of tenure and an authority could satisfy its full housing duty under section

193(2) by providing temporary accommodation. Sections 175(3), 191(1) and 193(2)

were looking to the future as well as to the present and accommodation that might

be unreasonable for a person to occupy for a long period might be reasonable for

him to occupy for a short period.7

14. Accommodation has to be suitable for the person or persons to whom the

duty is owed. So in R. v Brent LBC ex p Omar8 accommodation in a filthy,

cockroach-infested basement flat with high windows and soaking walls of a Somali

refugee who had been imprisoned and tortured in her own country was not suitable.

A similar approach was recently followed in the Central London County Court in

Qoraishi v City of Westminster,9 where a review decision was quashed because the

reviewing officer had failed to take into account medical evidence as to likely

deterioration of mental health if the Claimant was rendered street homeless.

5 R v Newham London Borough Council ex p Sacupima (2001) 33 HLR 1. 6 Sheridan v Basildon BC (formerly Basildon DC) [2012] EWCA Civ 335, Patten LJ, §32. 7 Birmingham City Council v Ali [2009] UKHL 36, [2009] 1 WLR 1506. 8 [1986] AC 484. 9 HHJ Hornby, 10th June 2014, Legal Action July/August 2014 55.

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15. Suitability for a person in need of a carer may require an additional bedroom

for that carer. Where a council has a policy in respect of this, the reviewing officer

should engage properly with it and not simply list it.10

16. In deciding whether accommodation provided under Pt 7 of the Housing Act

1996, is suitable for an applicant who is a Gypsy, an LHA must give special

consideration to securing accommodation that will facilitate his traditional way of life,

but this does not necessarily mean that it must find a caravan pitch for the Gypsy

concerned.11 On the other hand:

… a caravan pitch offered to a caravan owner and dweller who is homeless, as a result of eviction from another pitch or simply unable to find a pitch, may be a discharge of an authority's duty under s.193, that is, the offered pitch may be treated as suitable alternative “accommodation” for this purpose. 12

… if an authority chooses, with the applicant's agreement, to “accommodate” him by providing him with a pitch for his caravan, it would, in my view, serve as a discharge of its duty under that provision.13

Legal Aid

17. Legal Aid can be granted in ‘Homelessness’ cases.14

B. Periodical review of housing needs

17. Section 8 (1) of the Housing Act 1985 provides for a periodical review of

housing needs. Since 2006 it has provided:

Every local housing authority shall consider housing conditions in their district and the needs of the district with respect to the provision of further housing accommodation.

10 Walsh v Haringey LBC, HHJ Cochrane, Clerkenwell & Shoreditch County Court, 31st March 2014, Legal Action July/August 2014 56. 11 Codona v Mid-Bedfordshire DC [2004] EWCA Civ 925. 12 Ibid. paragraph 22. 13 Ibid. paragraph 31. 14 Legal Aid, Sentencing and Punishment of Offenders Act 2012 Sch 1 Part 1 §34)

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18. Certain legal requirements in respect of this section may be wrongly missed:

(1) The needs of the district are not confined to the needs of persons living in it at the

time. It is not outside the purview of a housing authority, in considering the provision

of housing accommodation, to have regard to the fact that, in part, they will be

making provision for persons who are then living in an adjoining district but who

desire, or will more easily obtain, accommodation in the district of the acquiring

authority.15

(2) When discharging its duty under this section a housing authority “shall have

regard to the special needs of chronically sick or disabled persons”.16

(3) For that purpose of discharging this duty “the authority shall review any

information which has been brought to their notice, including in particular information

brought to their notice as a result of the consideration of the housing conditions in

their district under section 3 of the Housing Act 2004”.

(4) When undertaking a s8(1) review local housing authorities “must carry out an

assessment of the accommodation needs of gypsies and travellers residing in or

resorting to their district”.17 Accommodation needs “includes needs with respect to

the provision of sites on which caravans can be stationed”.18 Gypsies and Travellers

in this subsection means:

(a) persons with a cultural tradition of nomadism or of living in a caravan; and (b) all other persons of a nomadic habit of life, whatever their race or origin, including—

(i) such persons who, on grounds only of their own or their family's or dependant's educational or health needs or old age, have ceased to travel temporarily or permanently; and

15 Watson v Minister of Local Government and Planning [1951] 2 KB 779, Devlin J., 783. 16 Chronically Sick and Disabled Persons Act 1970 s3(1). 17 Housing Act 2004 s205(1). 18 Housing Act 2004 s225(5)(b).

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(ii) members of an organised group of travelling showpeople or circus people (whether or not travelling together as such).19

19. The Homelessness Act 2002 s1 imposes a duty on LHAs to carry out a

homelessness review and to formulate and publish a homelessness strategy based

on the results of that review. Research by Lord Avebury has shown that the majority

of local authorities that had recorded unauthorised encampments in their district had

failed to mention Gypsies and Travellers in their review and strategy. Of 152 local

authorities whose strategies were checked, 107 (70.4 %) did not mention Gypsies or

Travellers.

20. A failure to comply with these requirements may lead to an application for

judicial review.

Tim Jones

No5 Chambers

+ 44 (0) 845 210 5555

[email protected]

19 Housing (Assessment of Accommodation Needs) (Meaning of Gypsies and Travellers) (England) Regulations 2006 reg. 2; Housing (Assessment of Accommodation Needs) (Meaning of Gypsies and Travellers) (Wales) Regulations 2007 reg. 2.

Abid Mahmood Public Law

Year of Call: 1992 Position: Head of Immigration, Asylum and Nationality Clerks Senior Practice Manager Abdul Hafeez Practice Group Clerks Mark Byrne James Harte Craig Wain Practice Director Tony McDaid Contact a Clerk Tel: +44 (0) 845 210 5555 Fax: +44 (0) 121 606 1501 [email protected]

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Head of Immigration Group at No5 Chambers. Special Advocate as approved by the Attorney General to undertake national security cases. Recorder of the County Court- Civil law, Family Law (Public). Family Law (private) Fee Paid First Tier Tribunal Judge (IAC)

Abid Mahmood is an Administrative Law specialist with considerable experience of human rights issues. He is one of only a few Special Advocates approved by the Attorney General to undertake national security cases. Recent cases include diverse issues. Some of these have included: Taylor v Shropshire Council CO Ref 14031/2013 (29th August 2014). Administrative Court, High Court of Justice. Acted for Shropshire Council in a successful resistance to the Claimant’s applications for an injunction and judicial review in respect of the restriction of bus services in Shropshire. Claimant’s issues included arguments in respect of rural isolation of the elderly. Warwickshire County Council v Matalia 3BM30478. A school tutor had placed questions to be used in a forthcoming 11 Plus Grammar School Test onto the internet. Various issues arose. Acted for the local authority. Obtained an injunction to prevent publication and orders granted for removal of the same from the internet. R (on the application of) JWW Allison and Sons Limited v The NHS Commissioning Board and NHS Property Services and others. CO/12513/2013. Instructed by JWW Allison. Obtained an injunction to prevent the NHS from permitting a new pharmacy to operate next to a new hospital in defiance of the existence of a century old pharmacy in the town centre. Issues included Judicial Review, procurement, EU law, injunctions, damages and leases. Abid Mahmood has appeared in other important cases in recent years at the Supreme Court, House of Lords and in hundreds of cases at the Court of Appeal and Administrative Court, High Court with numerous appeals pending at the Senior Courts. He is regularly instructed to draft proceedings and to advise on Judicial Review. He is instructed by individuals (approved to undertake Public Access work by the Bar Council), local authorities, NHS Trusts, public bodies and private solicitors firms on a wide variety of work. He has particular expertise on cases with human rights issues. He lectures regularly and has provided training for both solicitors and barristers.

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He works with leading counsel, leads other juniors and acts alone in cases. He is recognised as a leading expert in his chosen areas of work with recommendations in both the Legal 500 and Chambers UK. He has appeared as a leader in those directories for many years. QUALIFICATIONS Short list for Barrister of the Year Law Society 2013 Short list for Barrister of the Year Law Society 2012 One of the runners up for the 2007 LAPG Legal Aid Lawyer of the Year Award (Barrister Category) Nominated for 2008 LAPG Legal Aid Lawyer of the Year Award (Barrister Category) MEMBERSHIPS

Family Law Bar Association, Administrative Law Bar Association, Midland Chancery Bar Association, Court of Protection Practitioners Association

APPOINTMENTS Recorder of the County Court (since 2008) First Tier Tribunal Judge (IAC) (Fee Paid) (since 2006) Attorney General’s list of Special Advocates (approved to undertake national security cases) Equality and Human Rights Commission’s Panel of Advocates RECOMMENDATIONS In the Legal 500 2014 Abid Mahmood is described as one of the leaders in his areas of work and that he is: 'Personable and very user friendly.' 'An effective advocate, who argues points formidably.' Legal 500 2014

In Chambers UK 2014 referring to Abid Mahmood it is said: "He has a very detailed knowledge of immigration and human rights law. He picks up principles and develops them well." Chambers UK 2014

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Abid Mahmood ‘a persuasive advocate whose paperwork is immaculate’ Abid Mahmood is referred to within two categories and regions in the prestigious Legal 500 Directory. Additionally for Planning Law, Regulatory Law and Public (Administrative Law) he is described as "An exceptional Advocate". Legal 500 2013 Abid Mahmood has extensive public law expertise and experience in the higher courts. He acted for a claimant in the recent case of Chapti, Ali & Others, which was an important test of the compatibility of new English language requirements in respect of spousal visa applications with human rights law. He is "great on immigration and human rights," and is praised for the creativity of his arguments and his "robust, tenacious and punchy" advocacy. Chambers UK 2013 Group head Abid Mahmood draws respect from sources for "his good brain and the consistent work which proves this." Commentators also note his excellent communication with clients. Recent work includes the judicial review of a decision to refuse British citizenship, which concluded that the government should change the law to allow post-flight spouses to join refugees in England. Chambers UK 2012 Abid Mahmood is "extremely precise and meticulous." He has a broad public law practice and is praised for his "gutsy approach and willingness to tackle complicated and gritty matters." Chambers UK 2011 Abid Mahmood "is a genius" Legal 500 2010 Abid Mahmood has been a feature of the leading directories for several years and has been commended for his highly regarded “client handling skills”.

Education

Children & Families Act 2014

Ramby de Mello & Russell Holland



Ramby de Mello Public Law

Year of Call: 1983 Clerks Senior Practice Manager Abdul Hafeez Practice Group Clerks Mark Byrne Craig Wain James Tucker Michael Maher Practice Director Tony McDaid Contact a Clerk Tel: +44 (0) 845 210 5555 Fax: +44 (0) 121 606 1501 [email protected]

Ramby is a specialist barrister in judicial review and public law. He has many high profile reported cases and has appeared in the High Court, Court of Appeal, House of Lords (Supreme Court) and the European Court of Justice. In addition he is an acknowledged expert in human rights (including being a general editor of Human Rights Act 1998 Practical Guide’ –published by Jordans) European Union law particularly in relation to anti-discrimination law, administrative law, public procurement, freedom of establishment, services and movement (including social security, immigration, crime, customs and excise) Nationality and immigration law (including national security and terrorism law) . His specialism includes child support law, social services, civil liberties, individual rights, civil actions against the state, extradition, education, prison and discrimination law. Ramby frequently undertakes pro bono work and was Times Lawyer of the Week for representing a Hindu wishing to undertake an open air funeral pyre in the UK. Books & Articles:- General Editor of the book "Human Rights Act 1998 - A Practical Guide" (Jordans). Other published works include a chapter on Immigration and Nationality for the Discrimination Law Association book entitled "Making Rights Real" (a handbook on challenging racism and racial discrimination under the Human Rights Act; contributions to the Bar Council Human Rights Handbook (Study Guide). He is also written a book for the NHS and Local Authorities on Human Rights (Monitor Press). He is also a consultant editor for the "Immigration and Nationality Law Reports (Jordan); writes articles for JCWI. QUALIFICATIONS BA, MA, LLB, LLM RECOMMENDATIONS ...another established immigration practioner...peers were full of praise for the "imaginative way in which he constructs his arguments". Chambers UK 2010 ..."admired in this field". Legal500 2009

NOTABLE CASES Some of his cases include the following:- R(AHK)-v-SSHD [2009] EWCA Civ 287 [2009] 1 WLR 2049 The court set out the principles to be adopted in determining whether a special advocate should be appointed to represent an applicant seeking judicial review of a refusal of his application for British citizenship, where the refusal was on the ground that the applicant had not demonstrated good character and where the Home Secretary was not willing to disclose; ) Ex parte Scullion (state liability for non-transposition of EC Directives in social security law); SSHD-v-Ex parte Wolke (HL) [1997] 1 WLR 1640 (EC law and Social security); P-v-S C13/94 [1996] ICR 795 ECJ; (transsexual and Sex Discrimination) (this case changed domestic law to protect transsexuals against discrimination in the work place); Ocezlik [2009] EWCA Civ 260 The time taken to process an application of a Turkish immigrant for indefinite leave to remain in the United Kingdom did not count towards the one-year period of legal employment that would entitle him to remain in the UK under the EC; Bigia [2009] EWCA Civ 79 The court ruled on the extent to which the decision of the European Court of Justice in Metock v Minister for Justice, Equality and Law Reform (C-127/08) (2009) All ER (EC) 40 had affected domestic law on the rights of persons falling within Directive 2004/38 art.3.2(a), namely "other family members" of a "Union citizen"; Manjit Kaur ECJ (whether British Overseas nationals are EU citizens); R(Tofik)-v-IAT[2003] EWCA Civ 1138 [2003] INLR 623 (duty of tribunal to give reasons for refusing extension of time; BI (PAKISTAN) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2009)-[2009] EWCA Civ 834 When considering whether the removal of a person, who claimed that she was dependent on a daughter and her family in the UK because of her ill health, breached her right to a family life under the European Convention on Human Rights 1950 art.8, the AIT failed to have proper regard to the positive duty on contracting states to show respect for family life and failed to appreciate that a person's family was the group on which many people most heavily depended socially, emotionally and financially; Lim-v-SSHD [2008] INLR 60 [2007] EWCA Civ 773 All questions arising under theA Immigration and Asylum Act 1999 s.10 were to be regarded as appealable and reviewable and the use of judicial review had to be calibrated to the nature of the issues through the exercise of judicial discretion to the nature of the issue or issues; R. v Secretary of State for the Home Department Ex p. Khawaja [1984] A.C. 74 and the Nationality, Immigration and Asylum Act 2002 s.82 could be respected. CA (Civ Div) (Sir Mark Potter (President Fam), Sedley LJ, Wilson LJ) 25/7/2007; YD-v-Turkey [2006] 1 WLR 1646 the Court of Appeal has an inherent jurisdiction to order the Home Secretary to refrain from removing an applicant whilst his out of time appeal is pending with the court; Raghbir Singh-v-SSHD [1996]Imm AR 507 (deportation on grounds of national security);

SN-V-SSHD [2005] EWCA Civ 1683 [2006] INLR 273 (removal of an HIV/AIDS sufferer receiving treatment in the UK which would not be available in the destination country). Some of his Judicial Review Reynolds-v-Department of Works and Pensions [2005] UKHL [2005] 2 WLR 1369 (age related benefits are not discriminatory under article 14 ECHR); Kehoe-v-DWP [2005] 3 WLR 252 (HL) (determination of civil rights and obligations whether civil rights are engaged under the CSA 1991); Lady Archer-v-Jane Williams (QBD 30 June 2003); Baiai-v-SSHD [2007] 1 WLR 693 (declaration of incompatibility granted in respect of the requirement to obtain the written permission of the SSHD prior to marriage) (confirmed by the Court of Appeal and House of Lords). [2008] 3 WLR 549; R-v-the Ministry of Defence ex parte Smith (CA) QB 517 (ban on homosexuals serving in the Armed Forces); Williamson-v-Chief Constable of the West Midlands Police [2004] 1 WLR 14 (the Court of Appeal held that breach of the peace was not an offence for purposes of PACE taken together with article 5 EHCR but the Court nevertheless ruled that PACE should be applied to those arrested for breach of the peace) He and Dan-v-DARA [2004] EWHC 3021 (Admin) (recovery proceedings under Part 5 of the 2002 Act are not criminal proceedings for purposes of art 6 ECHR and though the criminal standard of proof does not apply the court should look for cogent evidence before deciding that the balance of probabilities has been met; Chandler-v-Legal Services Commission QBD (2004)[2004] EWHC 925 (Admin) (concerns the duty of the LSC to fund the representation of the claimant before the Coroner’s Court; R-v-Wandswork LBC ex parte O [2000] 1 WLR 2539 (entitlement to assistance under the National Assistance Act to overstaying immigrants; A-v-Coventry City Council [2009] EWHC 34 (Admin) duties of local authority pursuant to the Children Act 1989 s.20 and s.23 to provide accommodation for a child. In need); R(Rahim)-v-Birmingham Magistrates' Court [2009] 1 WLR 466 The issue was whether on an appeal under the Private Security Industry Act 2001 the magistrate's court could consider the merits by looking into the circumstances of the door supervisor's conviction. The Court ruled that there was not such discretion conferred on the court in deciding the appeal; DAVENDER KUMAR GHAI (Claimant) & (1) RAMGHARIA GURDWARA HITCHIN (2) ALICE BARKER WELFARE & WILDLIFE TRUST (Interveners) v NEWCASTLE CITY COUNCIL (Defendant) & SECRETARY OF STATE FOR JUSTICE (Interested Party) (2009) The burning of human remains on an open pyre (pending in the Court of appeal);

Closure orders:- Zoe Errington-v-Metropolitan Police (QBD April 2006 (Admin) (this case was a test case under the Anti Social Behaviour Act 2003 - concerning the jurisdiction of the Magistrates’ Court to hear the application for a Closure Order under ASBA 2003 and whether it was dependent upon the existence of the validity of the closure notice issued and served under section 1 Part 1 of the ASBA); R (on the application of DAVIES) v SOLIHULL JUSTICES (2008)[2008] EWHC 1157; A magistrates' court had erred in determining that an accused, by his behaviour, had deliberately absented himself from his criminal trial and that it was appropriate to proceed with the trial in his absence; Dwaine Street-v-CPS QBD (Admin) (December 2003) (this case decided that an loaded air weapon in a public place was a firearm offence under the Firearm Act 1968); R(Ejaz Ahmed)-v-Bham Mag [2003] EWHC 72 (Admin) Delay by prosecution led to the quashing of the DJ’s order because the trial did not take place within a reasonable time; CPS-v-Billy Lawrence QBD (Admi) (July 2007) (the Justices were not entitled to exclude the evidence of the words spoken by the defendant even though these words may have constituted the ingredients of the section 5 Public Order Act 1986 offence); Kelly-v-Warley Magistrates’ Court [2007] EWHC 1836 (Admin) [2008] 1 WLR 2001 (unconditional directions issued to the defendant under rule 3.5(2) of the Criminal Procedure Rules to disclose the names of his witnesses etc infringed legal professional privilege.; Birmingham City Council-v-Ellis [2008] EWCA Civ 1186 [2009] 1 WLR 1961 Where a local authority sought an injunction in circumstances in which an antisocial behaviour order would be available, the court should not, save perhaps in an exceptional case, grant an injunction but should leave the local authority to seek an antisocial behaviour order so that the detailed checks and balances developed by Parliament and in the decided cases would apply;

Russell Holland Public Law


Russell has experience of local government, planning and education law. He has experience of social security, criminal injuries compensation hearings and CRU appeals. He has experience of all aspects of special educational needs law relating to Parts 2,3 and 4 appeals, disability discrimination and school transport. He has experience of the Upper Tribunal and Court of Appeal. As a pupil Russell worked alongside his supervisor on several planning inquiries, High Court and Court of Appeal cases in planning law. Russell has been an elected Councillor since 2007 where he served on the Planning Committee for 3 years, was Chair of the Children and Young Peoples’ Overview and Scrutiny Committee, was Chair of Task Group reviewing the education of children in care and since 2011 he been Cabinet Member for One Swindon Communities and Housing. He was a member of a Police Authority and is a Governor of a further education college with special responsibility for safeguarding issues. As a student he completed internships in the House of Commons, United States Senate, European Parliament and Public law project. NOTABLE CASES NGI v Wiltshire [2010] UKUT 242 AAC West Sussex v ND [2010] UKUT 349 A Borough Council v S [2012] EWCA Civ 346

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Children and Families Act 2014 Overview and implications for Judicial Review

Presented by Russell Holland and Ramby De Mello

Overview

§  Special Educational Needs (SEN) §  Children and Families Act §  Upper Tribunal SEN appeals. §  Potential new judicial review (JR) areas.

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Overview 1

Where child has SEN and a statement or EHC plan then FTT can only hear appeals on specified matters in relation to education (description of needs, provision, placement, amendments or creasing to maintain. But if legal issue in process then may be JR. Other areas in relation to health or social care needs would be JR.

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2

Overview 2

Discrimination could be FTT, County Court or JR depending on remedy sought.

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Health warning!

§  CFA represents a major change in SEN law and practice.

§  CFA does not apply in Wales. §  It is necessary to keep up to date with updates in the

regulations. §  Expected that case law around the core concepts will

remain broadly similar but likely to be new case law.

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Special Education

§  Part 3 Children and Families Act 2014 §  Specia l Educat ional Needs and Disabi l i ty

Regulations 2014/1530 §  Special Educational Needs (Personal Budgets)

Regulations 2014/1652

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3

Transition

https:/ /www.gov.uk/government/uploads/system/uploads/a t t a c h m e n t _ d a t a / f i l e / 3 3 5 4 8 9 /transitional_arrangements_for_parliamentarians.pdf Basically §  From 1st September 2014 new entrants will have EHC plan. §  Or a transfer review may take place. §  Systems will operate in parallel for 4 years. §  More detail on transition expected and for young people leaving

offender institutions.

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Core Concepts

§ Section 19 – overriding principles. § Code of Practice § Definition of SEN. § Transition between statements/plans § Assessment § Contents of statements/plans § Ceasing statements. § Appeals § Tribunal practice and procedure § Case law (a) SEN specific (b) general admin.

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Section 19

In exercising a function under this Part in the case of a child or young person, a local authority in England must have regard to the following matters in particular— (a) the views, wishes and feelings of the child and his or her parent, or the young person; (b) the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned; (c) the importance of the child and his or her parent, or the young person, being provided with the information and support necessary to enable participation in those decisions; (d) the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.

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4

Code of Practice

s.77 Must “have regard” to Code of Practice.

LA may have their own local policies but Code of Practice will always have greater weight.

All public authorities to have regard. Approved by Parliament on 28th July 2014. Came into force 1st September 2014. https://www.gov.uk/government/publications/send-code-of-practice-0-to-25 Assess, plan, do, review.

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The more things change…….

§  Child has SEN. §  Statutory assessment of SEN. §  Statement Parts 2,3 and 4.

§  Child has SEN §  Statutory assessment Education, Health and Care. §  Plan has Parts A to I

§  Transition will be complex!

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Definition of SEN 1

§  S.20 CFA (1) A child or young person has special educational needs if he or she has a learning difficulty or which calls for special educational provision to be made for him or her. (2) A child of compulsory school age or a young person has a learning difficulty or disability if he or she— (a) has a significantly greater difficulty in learning than the majority of others of the same age, or (b) has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.

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5

Definition of SEN 2

(3) A child under compulsory school age has a learning difficulty or disability if he or she is likely to be within subsection (2) when of compulsory school age (or would be likely, if no special educational provision were made). (4) A child or young person does not have a learning difficulty or disability solely because the language (or form of language) in which he or she is or will be taught is different from a language (or form of language) which is or has been spoken at home.

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EHC Assessment Section 36

§ Request can be made by CP, YP or person acting on behalf of school or post 16 institution. § Regulations provide detail of how this happens. § Must consult. § Section 19 CFA. § Statutory test 36(8) has or may have SEN or EHC provision needed. § Must give reasons for decision.

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EHC Assessment Reg.6(1)

Must seek advice from: § Child’s parents or YP. § Headteacher or principal. § Medical advice and information from health care professional. § Educational Psychologist. § Advice and information in relation to Social care. § Any person who Child’s parents or YP reasonably requests. § If HI or VI then specialist educationalist.

Must not seek advice if previously provided and LA, Child’s parents or YP and person providing advice agree not necessary reg.6(4).

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6

After assessment

LA should issue draft plan within 14 weeks or not issue after 16 weeks. Parent or YP can request school, make representations and require a meeting within 15 calendar days of draft plan. Obligation to consult school. Finished plan should be produced within 20 weeks of original request.

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EHC Plan Section 37

(1) Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan— (a) the local authority must secure that an EHC plan is prepared for the child or young person, and (b) once an EHC plan has been prepared, it must maintain the plan.

(2)-(4) Specifies contents: needs, outcomes, provision in relation to EHC.

Section 38 provides for a draft plan.

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EHC plans General

§  LA is under a duty to ensure that the provision is made. No best endeavours. Remedy for parent is JR no appeal to FTT.

§  Provision must meet the needs and normally should be specific and quantified.

§  May be dispute over whether or not a need is an educational need

Whether education question of fact rather than law Bromley –v- SENT [1999] ELR 260. Some could be both then question of provision A –v- Hertfordshire County Council [2006] EWHC 3428. Speech and language will almost always be educational X&X –v- Caerphilly BC [2004] EWHC 2140 NB Therapies under s.21(5) health care or social care provision which educates or trains will be treated as SEN. So LA duty to provide and fund.

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EHC CFA s.37

(2) For the purposes of this Part, an EHC plan is a plan specifying— (a) the child's or young person's special educational needs; (b) the outcomes sought for him or her; (c) the special educational provision required by him or her; (d) any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs; (e) in the case of a child or a young person aged under 18, any social care provision which must be made for him or her by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970 (as it applies by virtue of section 28A of that Act); (f) any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e). (3) An EHC plan may also specify other health care and social care provision reasonably required by the child or young person. (4) Regulations may make provision about the preparation, content, maintenance, amendment and disclosure of EHC plans.

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EHC Plan Sections

Section A Views, interests and aspirations. Section B SEN. Can be appealed to FTT. Section C. Health care needs. Cannot be appealed to FTT. Section D. Social care needs. Cannot be appealed to FTT. Section E. Outcomes. Cannot be appealed to FTT. Section F. Provision. Can be appealed to FTT. Section G. Health Care Provision. Cannot be appealed to FTT, CCG has right of veto. Section H. Social care provision. Cannot be appealed to FTT. Section I. Placement. Can be appealed to FTT. Section J. Personal budget. Section K. Advice sought.

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Placement s.33 and s.39

S.33 right to mainstream placement unless 1.  CP or YP does not want it. 2.  Incompatible with the provision of efficient education of other

children and no reasonable steps can be taken to prevent this.

High threshold and applies only to other children not child concerned Hampshire v R & SENDIST [2009] EWHC 626.

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Placement s.33 and s.39

Comply with CP or YP request.

(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or (b) the attendance of the child or young person at the requested school or other institution would be incompatible with— (i) the provision of efficient education for others, or (ii) the efficient use of resources.

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Costs 1

In Oxfordshire the fees for the PS were £16,800. The costs of the LS were calculated as £14,049 using the following elements: a. Learning support assistant (10 hours) 2,473 b. Age weighted pupil unit (AWPU) cost 2,076 c. Teacher for the deaf (5 hours) 5,500 d. Transport 4,000

§  The LA successfully argued that because the Teacher for the Deaf was going to be employed anyway and there were already two other children in the taxi that items c and d should not have been included as part of the costs.

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Costs 2

Coventry v SENDIST [2007] EWHC 2278 (Admin) it was held that the “resources” to be considered were all LA resources, including delegated funding. As such extra school spending needed can be taken into account even if extra funding would not be delegated. In Coventry the PS had fees of £11,500. The FTT found that the costs to support the child at the LS were £13,000. The LA argued that because of the way in which funding is delegated that the cost had already been incurred and therefore applying Oxfordshire that the cost should effectively be nothing or that the additional provision needed was only about £7,500. This argument was rejected, delegated funding was still public funding.

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Costs 3

O v Lewisham [2007] EWHC 2130 (Admin) it was held that all public expenditure is relevant, particularly the LA social services function. In Lewisham the PS was residential and was found to cost £20,000 but by attending the PS the LA would save money because respite care would not have been provided if the child attended the PS school. Therefore the FTT should have taken into account the savings of the respite care.

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Costs 4

Haining v Warrington [2014] EWCA Civ 398 “B’s parents would like him to attend W school (“WHS”), which is an independent residential special school (which Warrington accepts would meet his needs). Warrington says that he should go to G school (“GHS”), which is a maintained day special school. Warrington accepts that, if he attends GHS as a day pupil, it will also provide him with residential “respite care”, which it currently provides for him at WHS. The comparative figures put before the Upper Tribunal (Administrative Appeals Chamber) (Judge David Williams) (“the UT”) for the two schools were as follows. The total figure for a placement at WHS was £92,900 and the total figure for a placement at GHS was £90,441. The main differences between the figures were that (i) the school costs for WHS were £33,448 and the school costs for GHS were £61,238; and (ii) the cost of a placement at GHS included £29,336 for boarder/respite fees, whereas there was no such cost in respect of WHS. “ Essentially Lewisham and previous authorities followed.

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Costs 5

In K v Hillingdon [2011] UKUT 71 (AAC) a successful ground of appeal was that there was an unlawful failure by the FTT to consider wider benefits in deciding whether additional public expenditure would be unreasonable. Judge Pearl held that there was such a failure (at para.29) he said “applying this general principle, it is my view that a LA (and the Tribunal on appeal) when conducting the balancing exercise, are obliged to take account of wider social and health benefits when deciding whether additional public expenditure is unreasonable.”

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Costs 6

Transport – if two schools named and both can meet needs then if transport costs differential on transport then can name more expensive school. Dudley v S [2012] EWCA Civ 346

NB Cannot appeal to FTT on transport alone – consider JR and potential discrimination.

Child’s preference – costs differential of over £30,000. 16 year old with severe visual difficulties preference was sufficient to still name school even though LA school could make provision. West Sussex v ND [2010] UKUT 349

Out of Borough Placements T v Bromley [2013] UKUT 0529. Same reasoning applies as with usual costs cases.

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Reviews and Re-assessments. S.44

(1) A local authority must review an EHC plan that it maintains— (a) in the period of 12 months starting with the date on which the plan was first made, and (b) in each subsequent period of 12 months starting with the date on which the plan was last reviewed under this section. (2) A local authority must secure a re-assessment of the educational, health care and social care needs of a child or young person for whom it maintains an EHC plan if a request is made to it by— (a) the child's parent or the young person, or (b) the governing body, proprietor or principal of the school, post-16 institution or other institution which the child or young person attends.

But will be regulations on this setting out when not necessary to review/re-assess.

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Ceasing to maintain s.45

(1) A local authority may cease to maintain an EHC plan for a child or young person only if— (a) the authority is no longer responsible for the child or young person, or (b) the authority determines that it is no longer necessary for the plan to be maintained. (2) The circumstances in which it is no longer necessary for an EHC plan to be maintained for a child or young person include where the child or young person no longer requires the special educational provision specified in the plan. (3) When determining whether a young person aged over 18 no longer requires the special educational provision specified in his or her EHC plan, a local authority must have regard to whether the educational or training outcomes specified in the plan have been achieved. (4) A local authority may not cease to maintain an EHC plan for a child or young person until— (a) after the end of the period allowed for bringing an appeal under section 51 against its decision to cease to maintain the plan, where no such appeal is brought before the end of that period; (b) after the appeal has been finally determined, where such an appeal is brought before the end of that period. (5) Regulations may make provision about ceasing to maintain an EHC plan, in particular about— (a) other circumstances in which it is no longer necessary for an EHC plan to be maintained; (b) circumstances in which a local authority may not determine that it is no longer necessary for an EHC plan to be maintained; (c) the procedure to be followed by a local authority when determining whether to cease to maintain an EHC plan.

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Rights of appeal

Can appeal to FTT against: §  Refusal to assess. §  Refusal to provide a plan following assessment. §  Contents of plan §  Changes (or refusal to amend plan) following annual review. §  Decision to cease to maintain plan.

§  NB child’s parents or young person has right of appeal. Question whether parent or young person will be able to appeal. Implications for legal aid?

§  If not appealable to FTT then consider JR.

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The FTT Purpose

When determining an appeal, the Tribunal “stands in the shoes” of the LA. In Bromley v SENT [1999] All ER 5867 Sedley LJ stated (at 594) “Until the welcome setting up of the [FTT]...challenges to [LA’s] statements [of special educational needs] could be made only on questions of law by judicial review...Unlike the High Court, it is a specialist tribunal with a lawyer chairman and lay members chosen for their knowledge and experience....In my view this restructuring has jurisprudential implications. Where previously the parent’s only resort from the [LA] was to the court, which had therefore to do its best to construe the statutory language in so far as construction was an appropriate exercise, there is now interposed a specialist tribunal whose remit is not necessarily the same. In particular where a court has to limit itself to the interpretation of terms of legal art and the setting out of limits to the meaning of ordinary words in their statutory context, the [FTT] is empowered to take a much closer look at the context of the [LA’s] statement. Indeed for many purposes it stands in the [LA’s] shoes, re-evaluating the available information in order if necessary to recast the statement. But in carrying out this function it also has a supervisory role – to interpret and apply the relevant law.”

FTT must not simply review what LA did must perform its function see CW v Hertfordshire [2013] UKUT 090. Appeal upheld as FTT reviewed what Tribunal did in relation to a decision to cease to maintain.

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FTT Mediation (s.52-55)

§  Parent or YP must consider mediation. §  Must obtain certificate to say mediation has been considered or if

mediation has taken place that it has taken place.

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FTT Rules

§  The FTT is governed by the Tribunal Procedure (First Tier Tribunal (First-tier Tribunal) Health Education and Social Care Chamber) Rules 2008 (SI 2008 No.2699). Rule 2 provides an overriding objective, broadly comparable to the Civil Procedure Rules.

§  Case management and other powers. §  Applications to strike out §  Applications for costs

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Practical Suggestions

§  Take a co-operative approach. Agree what you can. Where you don’t agree don’t argue, leave for FTT and have reasons ready.

§  Have evidence ready (Class teacher, SENCO, Experts). §  Ensure evidence is available in respect of issues in dispute (don’t

argue about what is agreed). §  Ensure evidence is relevant in relation to legal principles. §  Have good evidence on costs read (Be prepared for Coventry,

Oxfordshire and Warrington debates). §  Be ready to use Code of Practice. §  If something goes wrong procedurally aim to correct it as soon as

possible and be candid about any mistakes.

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Local Authority New Duties under CFA

§  Local Offer (s.30) – not legally binding. §  Duty to Co-operate (s.25-29, 31-32) §  Personal budgets and direct payments (s.49)

§  Potential conflicts between public bodies. §  Personal budget and direct payments may give rise to JR claim.

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Specific Situations to Consider

§  Overlap between SEN and family law issues. §  Transport §  Detained persons (see s.70-75) §  Persons lacking capacity s.80 §  Provision outside England or Wales s.62 §  Outside of school s.61 must be satisfied inappropriate in school.

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Equality Act 2010

§  LA as public body must not discriminate. Usually not an issue for LA in connection with SEN appeals. But may be an issue in relation to transport or other provision.

§  Can be an issue for schools in connection with disciplinary matters.

§  Regulation 4 arguments in exclusions – violence in context of disability discrimination claims. See P v Governing Body [2013] UKUT 154.

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Upper Tribunal appeals.

§  Can only appeal on a point of law. §  Apply for permission to FTT. §  If refused by FTT apply for permission to UT on papers. §  If refused by UT on papers then apply for oral hearing. §  Note no costs orders (unless unreasonable conduct). §  If refused by UT on oral hearing then JR? Appeals: §  SEN specific error. Error on costs. Definition of SEN. §  General public law errors – reasons, rationality, procedural fairness.

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Recent Upper Tribunal case law

§  Specificity in the context of small groups. KvK v an Authority [2013] UKUT 0624.

§  Useful case dealing with costs in FTT Buckinghamshire v ST (LA appeal against costs order against them upheld) [2013] UKUT 468

§  Analysis of what is a “school” – unit attached to a school can be a school. TB v Essex County Council [2013] UKUT 0534

§  Waking day curriculum London Borough of Hammersmith and Fulham v JH [2012] UKUT 328 (AAC)

§  Necessity for a statement ND and CH v Leicestershire County Council [2012] UKUT 85

§  Late appeals CM v Surrey CC [2014] UKUT 0004

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Wales

§  Education (Special Educational Needs) (Wales) Regulations 2002 §  Code of Practice for Wales

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Discrimination Remedies - FTT

§  Section 116 EQA 2010 (1) A claim is within this section if it may be made to— (a) the First-tier Tribunal in accordance with Part 2 of Schedule 17, (b) the Special Educational Needs Tribunal for Wales in accordance

with Part 2 of that Schedule, or (c) an Additional Support Needs Tribunal for Scotland in accordance

with Part 3 of that Schedule. (2) A claim is also within this section if it must be made in accordance

with appeal arrangements within the meaning of Part 4 of that Schedule.

(3) Schedule 17 (disabled pupils: enforcement) has effect.

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Discrimination Remedies - FTT

Part 2 of Schedule 12 – A claim that a responsible body has contravened Chapter 1 of Part 6 because of a person's disability may be made (a) to the English Tribunal by the person's parent or, if the person is over compulsory school age, the person; (b) to the Welsh Tribunal by the person's parent.

Chapter 1 Part 6 – mainly look at s.85 – admissions, exclusion, way in which services provided.

§  Effect of s.114 is that if a claim can be made to FTT then cannot be made to County Court but FTT no power to award compensation.

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Discrimination Remedies – County Court

If a claim does not fall within Part 6 of Chapter 1 but does fall within s.29 (provision of services) then can make claim to County Court.

If a positive ruling from FTT then may be potential for compensation from County court under s.7 Human Rights Act 1998. Could make a holding claim to County Court pending outcome of FTT.

May be potential for inviting LA to compensate and then seeking JR of that decision.

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Discrimination Remedies – High Court

If a claim relates to a particular policy then JR would be appropriate remedy in High Court to quash a particular policy.

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Good luck! Feel free to get in touch at any time.

Presented by Russell Holland Ramby De Mello + 44 (0) 845 210 5555 + 44 (0) 845 210 5555 [email protected] [email protected]

public law group judicial review seminar seminar pack(2).pdf · adrian keeling qc silk 2011 year of...

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