Caring matters
Date: 24 April 2009
Authors: Ed Mitchell
Issue: Vol 159, Issue 7366
Categories: Features, Community care, Public
R (Rutter) v Stockton on Tees BC [2008] EWHC 2651 (Admin), [2008] All ER (D) 37 (Oct) was another addition to the list of failed claims for judicial review of local authority decisions to close care homes. The High Court rejected the claimant's arguments as follows:
● The risks posed to residents as a result of closure were not such as to violate their rights under Art 2 of the European Convention on Human Rights (right to life). The evidence was that the authority had done all that could reasonably be expected to avoid any real and immediate risk to the lives of the residents posed by transfer to a new home.
● The council's proposals did not render them in breach of its general disability equality duties under s 49A of the Disability Discrimination Act 1995. Mr Justice Wilkie said that this “was not an arguable ground. The council's decision did not in any way involve the curtailing or the cutting of services for a certain group of disabled persons. Indeed the decision was such that the individual consideration of the requirements of each individual resident was such that it would take full account of their care, including any disabilities”.
● The council's initial decision to close could be criticised on the basis that no information about risks associated with care home closure was placed before the decision maker by council officials. However, this decision was “called in” and reconsidered by a council committee. The court found that information about risk was placed before this committee in a “prominent and focussed” way. As a result, the decision of this committee, which replaced the earlier decision as the operative decision to close, could not be challenged on the basis that it failed to have regard to all relevant considerations.
Continuing care
In R (Green) v South West Strategic Health Authority [2008] EWHC 2576 (Admin), [2008] All ER (D) 21 (Nov) the High Court considered whether a NHS body had lawfully refused to fund the nursing home care required by a woman with Alzheimer's disease. For 15 months in 2005–06, she resided in a care home as a permanent resident. The placement was arranged by a local authority and, accordingly, charges were levied. Given the woman's available capital, she was required to pay full charges.
The woman's family argued that she had in fact been entitled to a fully-funded NHS continuing care package on the basis that her needs were primarily for health care (R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, [2000] 3 All ER 850). In other words, the family argued that the woman's care home placement should have been arranged by the NHS and, of course, NHS care is free of charge. Mr Justice Wyn Williams stated that, if the family's challenge were to succeed, “[the claimant] expects to be and no doubt would be reimbursed for the sums paid by her”. So, money was at the root of this dispute.
It was argued in this case that a health authority's eligibility criteria were unlawful because they failed to comply with case law and relevant Department of Health (DoH) guidance and, as a result, did not operate to identify patients whose needs were primarily for health care. Taking a pragmatic approach, Wyn Williams J rejected this argument. He said that the health authority's eligibility criteria needed to be “understood and applied” in the light of the then current DoH guidance which stated that “the ultimate objective is to ensure that those with a Primary Health Care need are fully funded by the NHS”. Therefore, while the criteria may not have been perfect, their use alongside the guidance meant that they would operate to identify individuals whose needs were primarily for health care. The claim was rejected.
The events which gave rise to this case took place before the introduction of the current framework for making decisions about eligibility for NHS continuing care in England. Accordingly, it will be of most relevance to those applications for compensation for historic failures to provide NHS continuing care that are still in the “pipeline”. The case has more general significance because of the assumption made by the High Court that published continuing care eligibility criteria will be applied in accordance with DoH guidance. It was this fact which in the present case really undermined the claimant's case that the relevant eligibility criteria were flawed.
Education
Children with special educational needs benefit from a detailed framework of education rights under Pt IV of the Education Act 1996, eg provision for legally enforceable statements of special educational needs. Once a person attains adulthood, however, this detailed framework disappears. But that does not mean that young people with learning disabilities are left with no education-related rights, a fact which is commonly overlooked. This is illustrated by the decision of the High Court (David Elvin QC, sitting as a Deputy High Court judge) in R (Alloway) v Bromley LBC [2008] EWHC 2449 (Admin). Giving what appears to be the first ever decision of the High Court on the topic, the judgment reminds local authorities in England of the need for a proper analysis of the educational needs of young people with learning difficulties and the provision available to meet them.
This case concerned the proper application of s 140 of the Learning and Skills Act 2000 (LSA 2000) which deals with assessment of the education and training needs of older children, and young people, with learning difficulties. A s 140 assessment must be carried out where: (i) a child in the last year of compulsory schooling has a statement of special education needs; and (ii) the “secretary of state” believes that the child will leave school to go on to receive post-16 education or training or higher education. In addition, the secretary of state has power to arrange for s 140 assessments of certain young people (under 25) who appear to him to have a learning difficulty.
Since April 1 2008 in England, the secretary of state (department for children families and schools) has arranged for s 140 assessments to be carried out by local authorities. As a result, in this case the legal challenge was brought against the local authority which carried out the assessment in question.
Section 140(4) of LSA 2000 sets out in general terms what the assessment must involve. The assessment must result in a written report of: (i) the young person's educational and training needs; and (ii) the provision “required to meet them”. However, the assessment does not determine which educational services will be offered to the young person. This task falls, in England, to the Learning and Skills Council (LSC) acting under LSA 2000, Pt 1. As the High Court said in this case, the LSC “has to consider, in the light of that assessment, what provision should be made and whether it should be funded”.
What led to this case?
A was a 20-year-old man with an autistic spectrum disorder and other learning disabilities. The relevant local authority, Bromley LBC, attempted to carry out a valid s 140 assessment. It became clear that Bromley was having difficulties when the LSC informed it that its purported assessment was inadequate. Alongside this, A's solicitors criticised the purported assessment and asked for it to be re-done. They argued that the assessment report did not set out Bromley's determination of the provision required to meet A's educational needs. A claim for judicial review was made.
The High Court's decision
In order to illustrate the importance of s 140 assessments, the High Court first set out where they sit in the system for determining educational provision for young people with learning difficulties: “the significance of a section 140 assessment is to amount to a first stage in the process of assessing the needs and provision to be made for a person with such difficulties in order that the LSC may then, by reference to that report, take matters further with regard to its own duties to assess the reasonableness of provision and funding for the matters which are recommended in the report and which the LSC subsequently accepts. It is therefore of considerable importance that the s140 duty should be discharged properly and clearly so that the LSC may properly proceed to deal with the next stage, which is essential in order that provision is practically delivered to the person who requires it.”
The High Court, while acknowledging that there is far less prescription about s 140 assessments than about assessments of children's SEN carried out under the Education Act 1996, ruled that there are certain minimum standards that must be met by s 140: “the assessment must be of the subject's educational and training needs and the provision required to meet them…in the sense of what can actually realistically be provided.
“To assess and report on merely theoretical provision would not, in my judgment, be a provision which was required to meet the needs identified…the requirement is for provision to meet the identified needs and this is to be determined by reference to what is available in the real world…This would have to include, in my judgment, at least a sufficiently clear indication (possibly quite a short reference) that the authority had considered the provision reasonably expected to be available.”
Applying the above rulings, the High Court held that Bromley's s 140 assessment report was unlawful. That part of the assessment report which purported to identify the provision required to meet A's needs was fl awed because it did not identify provision “which is actually or reasonably available within the real world”. Upon close analysis of the report, it became clear that Bromley expected the LSC to identify the provision required to meet A's educational needs. In the words of the High Court: “The role of the [local authority] in carrying out the assessment under section 140 seems to have been in part elided with or confused with the separate and logically distinct function of the LSC…the problem may well have been that the [local authority] has left over part of its functions in relation to the assessment of actual provision, which is for it to consider prior to reporting, to the LSC and the LSC's implementation stage...that approach is wrong in law.” The High Court declared that Bromley's assessment report did not comply with LSA 2000, s 140 and that it should be re-done.
Comment
This is a useful decision for young people with learning disabilities and their representatives. In practical terms, its significance may be felt by the LSC as much as by local authorities. Currently, we often see s 140 assessments (if they are carried out at all) reflecting existing LSC funding arrangements, eg the only provision specified in an assessment report as being required is a college which currently receives LSC funding or no provision at all is identified on the erroneous assumption that this is a matter for the LSC. In the light of this decision, there should not be this infiltration of assessment reports by existing funding patterns. The assessment report should contain an independent analysis of what the young person requires. The onus will then be on the LSC to decide whether or not to fund the provision described. This should help improve the transparency of LSC funding decisions.
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