Issue 1 - 20th May 2008

Tuesday 20 May 2008

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National Health Service Act 2006, s 242 has been amended by Local Government and Public Involvement in Health Act 2007 (with effect from a day to be appointed) so as to provide for expanded NHS consultation with and involvement of the public in the planning and delivery of health services

Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008: forms provided for administration around people submitted for detention under Mental Health Act

Mental Health (Conflicts of Interest) (England) Regulations 2008: mental health professionals warned of potential conflicts of interest when making applications under the Mental Health Act

Mental Health Act 2007 (Commencement No 6 and Aftercare under Supervision: Savings, Modifications and Transitional Provisions) Order 2008: continuation of after-care under supervision for ACUS patients following repeal of Mental Health 1983

Mental Health (Nurses) (England) Order 2008: mental health nurses may detain, for up to six hours, a patient who is receiving treatment for mental disorder as a hospital in-patient

Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations 2008: criteria for social services to recognise AMHPs for the purposes of the MHA 1983


On the 17th January 2008 the DoH published LAC (DH) (2008) 1, called Transforming Social Care, which contains guidance for social services authorities on "delivering the modernisation agenda" set out in Putting people first: a shared vision and commitment to the transformation of social care (December 2007) which itself built on the green paper Independence, well-being and choice: our vision for the future of social care for adults in England (2005) and the white paper Our health, our care, our say: a new direction for community services (2006). The "modernisation agenda" is "The aspirations for the modernisation of social care through personalisation, choice and control" including, in that the future "all individuals eligible for publicly-funded adult social care will have a personal budget.........a clear, upfront allocation of funding to enable them to make informed choices about how best to meet their needs". The circular also confirms the government's intention to transfer resources currently spent by PCTs on adults with learning disabilities to local social services authorities from 2009/10.

In March 2008 the DoH published Refocusing the Care Programme Approach: policy and positive practice guidance (to be implemented from October 2008). Essentially, the intention is to refocus the CPA approach so that it becomes the approach used in secondary health care to assess, plan, review and co-ordinate the range of treatment, care and support needs for people in contact with secondary health services who have complex characteristics i.e. broadly, those who are currently under the enhanced CPA will transfer across whilst those under the standard CPA will drop out of the CPA system.

Adult Services

Injustice in Residential Care: A joint report by the Local Government Ombudsman and the Parliamentary and Health Service Ombudsman for England: this was a report on investigations into complaints against Buckinghamshire CC and against Oxfordshire and Buckinghamshire Mental Health Partnership. This was the 1st joint report between the PHSO and LGO, under powers under the Regulatory Reform (Collaboration etc between Ombudsmen) Order 2007. The report found that the care needs of an adult with severe learning disabilities were never properly assessed by either the Council or the Trust so that he received care at a lower level than was required; his family were wrongly charged for items which should have been paid for out of his funding; that neither the Trust not the Council considered and endeavoured to promote the adult's rights under Articles 3, 8 and 14 of the Convention the parents were caused a great deal of distress whilst looking after the adult for 3 months at home without any support. Compensation of £32,000.00 was recommended.

Bicknell v HM Coroner for Birmingham/Solihull [2007] EWHC 2547 Admin: McCombe J quashed the coroner's decision that he did not have reasonable cause to suspect that the deceased had died an unnatural death, so as to require an inquest to be held. A death was "unnatural" in this context if the death was an unexpected death from natural causes that would not have occurred but for some culpable human failure, or was abnormal and unexpected, having regard to the combination of relevant circumstances rather than searching for a single dominant cause of death (applying R (Touche) v Inner London Coroner [2001] EWCA Civ 383, [2001] QB 1206. In this case, there was medical evidence that the Claimant's father's death in a care home may well have been caused or contributed to by excessive doses on an anti-psychotic drug, coupled with the restrictive effect of a bucket chair and the possible failure to give adequate antibiotic treatment once pneumonia set in; and there were substantial doubts resulting from other investigations as to the standard of care at the care home in question.

R (Pajaziti) v Lewisham LBC [2007] EWHC 1874 Admin: the Council had not acted unlawfully in concluding that an asylum seeker was not a destitute plus case: the outcome of the assessment which a Council was obliged to make when considering the case of an asylum seeker suffering from a medical condition and in need of medical attention depended upon, at least, some of the following considerations: whether the need for medical treatment existed solely by reason of a lack of accommodation and funds; where a need existed for medical treatment other than by reason of the mere lack of accommodation and funds, whether the care and attention needed was "otherwise available"; and whether, even if medical treatment was provided, the asylum seeker's medical condition was of such a character as to make the need for care and attention materially more acute. Properly analysed, that was the approach taken by the Council in the instant case

R (Gnezele) v SSHD [2007] EWHC 3275: expectant and nursing asylum-seekers and failed asylum-seekers get support from the SoS not LA (CA hearing in July 2008)

R (Thomas) v Staffordshire CC [2007] EWHC 1749 Admin: (refusing permission to apply for judicial review) the Council had made a budgetary or strategic decision to close care homes and day centres and was not going to make a final decision until it had undertaken a process of lawful consultation and assessments of needs: accordingly, it had not acted unlawfully

R (Hide) v Staffordshire CC [2007] EWHC Admin: (refusing permission to apply for judicial review) the Council had not reneged on assurances that it would consult on the closure of care homes and day centres nor was the result of consultation a foregone conclusion: accordingly, it had not acted unlawfully

R (Hide) v Staffordshire CC [2007] EWCA Civ 860: (refusing permission to appeal) where a Council gives public assurances that it will abide by the law and comply with the legal requirements of consultation, it is a hopeless task to seek to move by way of judicial review on the basis that those assurances will not be complied with. It is equally hopeless to suggest that an overall strategy described "as a decision in principle" constitutes a final decision.

R (Hide) v Staffordshire CC [2007] EWHC 2441 Admin: the Claimant's solicitor had acted unreasonably and negligently in issuing judicial review proceedings challenging the Council's budgetary decision to close care homes and day centres but the Court would not make a costs order because the consequence would be to bankrupt the solicitor and that would be disproportionate

In Jain v Trent SHA [2007] EWCA Civ 1186, (2008) 11 CCLR 79 the SHA's predecessor obtained the immediate cancellation of Mr and Mrs Jain's care home registration, under Registered Homes Act 1984, s 30 (now CSA 2000, s 20) by applying ex parte without notice to the magistrates' court. The statutory scheme does not provide for the order to be suspended pending the appeal. Mr and Mrs Jain won their appeal to the Registered Homes Tribunal on a submission of no case to answer. Indeed, it became abundantly clear that the magistrates had granted the s 30 order on the basis of information supplied by the SHA's predecessor that was seriously misleading. However, the s 30 order had resulted in the immediate closure of the home and ultimately to the loss of Mr and Mrs Jain's livelihood and their bankruptcy. The Court of Appeal held (Arden and Wilson LJJ, Jacob LJ dissenting) that the SHA owed no duty of care in negligence to Mr and Mrs Jain and were not responsible for the terrible losses that they so unfairly suffered.

In R (Chavda) v Harrow LBC [2007] EWHC Admin 3064, (2008) 11 CCLR 187, HHJ McKie (sitting as a DHCJ) dismissed every head of challenge to a local authority's decision to change their FACS eligibility criteria threshold from substantial to critical except one: he held that the authority had acted unlawfully by failing to have due regard to their duty to promote disability equality under s 49A of the Disability Discrimination Act 1995, by expressly considering the nature of the duty. It should be noted that in a different context the Court of Appeal has recently held that express consideration of the general duty to promote race equality, under s 71 of the Race Relations Act 1976, was unnecessary providing the decision maker had in substance had due regard to the relevant need identified by the statute: R (Baker) v SoSCLG [2008] EWCA Civ 141. It is not suggested that the 2 decisions are irreconcilable.

Argyll and Bute Council's Judicial Review of a Decision of the Scottish Public Services Ombudsman [2007] ScotCD CSOH 168: overruling the Ombudsman, on the application of the council, Lord McPhail held that s 1 of the Community Care and Health (Scotland) Act 2002 prohibits a local authority from charging for domiciliary personal social care provided or arranged to be provided by them to persons aged over 65, but does not require a local authority to make payments in respect of personal care that was not provided or arranged to be provided by them. The same would appear to apply to the provision of social care that is domiciliary social support, or nursing (whether or not from a registered nurse) which also fall within s 1 of the 2002 Act. The same would appear to apply to the first £145.00 per week of personal social care provided by local authorities in care home accommodation, which also cannot be charged for, by virtue of the Community Care (Personal Care and Nursing Care)(Scotland) Regulations 2002. Lord McPhail reached this conclusion "with reluctance" because compelled to do so by the plain meaning of the statutory provisions, observing that the minister promoting the 2002 Act appeared to have intended s 1 to have a much broader effect, entitling everyone over 65 assessed as needing personal care to receive it free of charge, whether or not it was provided by a local authority. However, the remedy lay with Parliament

Children's Services

R (G) v Nottingham CC [2008] EWHC 152 and 400 Admin: in the 1st judgment, Munby J made an order re-uniting an 18-year-old mother with her newly born son. The baby had been removed from its mother by doctors acting on a "birth plan" drawn up by the local authority's social workers but without the added authority of a care plan. The judge emphasised that local authorities and social workers had no power to remove children from parents without the sanction of the court (although police officers have emergency powers of removal under s 46 of the Children Act 1989, where they have reasonable cause to believe that the child would otherwise be likely to suffer significant harm; social workers have the right, as any ordinary person has, to use reasonable force to prevent a crime; s 3(5) of the Children Act 1989 allows doctors to intervene with emergency medical treatment which might involve separation of mother and child). In the 2nd judgment, Munby J held that the local authority had acted unlawfully by failing to prepare a timeous, pathway plan, based on proper assessments and with specific objectives and plans, and a personal adviser not concerned in the formulation of the pathway plan, in relation to the mother (who had been a looked after child), under ss 23A-C Children Act 1989 and the Children (Leaving Care)(England) Regulations 2001. He also confirmed that the local authority had acted unlawfully in removing the mother's daughter without a consent order, making it clear that in the course of argument he had roundly rejected an attempt by the local authority to suggest that the mother had consented to her baby being accommodated under s 20 of the Children Act 1989 because she had not actively objected or resisted and he made a declaration that the baby's removal had been in breach of the mother's rights under Article 8 of the Convention. Care proceedings subsequently issued by the local authority were transferred to the High Court (there had been an interim care order and assessments were under way).

R (Deeming) v Birmingham CC [2006] EWHC 3719 Admin: on the facts of this particular case (in particular that the former relevant child had support available to him locally) it had not been irrational to appoint a personal adviser based 150 miles away from where the former relevant child lived. Further, the personal pathway plan was not unlawful, even though it did require to be improved in a number of respects, for example, in that it failed to clearly identify the nature of the former relevant child's current health needs, his financial needs and all of his needs in terms of developing practical skills, and in that it failed to identify the persons responsible for implementing the suggested plan, in what time scale, who should take responsibility in an emotional crisis, how accommodation should be provided if his circumstances changed and any personal support requirements

R (M) v Hammersmith & Fulham LBC [2008] UKHL 14: the housing department should have sent a 17 year old to be assessed for accommodation under s 20 CA 1989. However, that did not happen so the young adult could not obtain aftercare services
R (B) v Lewisham LBC [2008] EWHC 738 Admin: the local authority's rate of financial support for special guardians, under ss 14A-F of the Children Act 1989 and the Special Guardianship Regulations 2005 was unlawful because (a) it did not take local core and enhanced fostering allowances as its starting point, as required by the Special Guardianship Guidance, paragraph 65, as that paragraph fell to be properly construed, (b) it resulted in a financial differential between special guardianship and fostering such as to create a financial obstacle in the way of instituting a special guardianship, rather than a fostering, regime, which was inconsistent with the purposes of the legislation.

R (C) v Secretary of State for Justice [2008] EWHC 171 Admin: the Secretary of State had not been under an express or implied duty to consult the Children's Commissioner on changes to the Secure Training Rules 1998, which dealt with inter alia the physical restraint of children at Secure Training Centres (applying BAPIO v SSHD [2007] EWCA Civ 1139, that where Parliament has conferred a rule making power on a minister without including an express duty to consult, but subject to a Parliamentary control mechanism such as the negative resolution procedure, it is not generally for the courts to superimpose additional procedural safeguards). However, the Secretary of State's decision not to consult had been Wednesbury unreasonable in that whilst he had taken his decision on the basis that the amendments to the 1998 Rules did not reflect a significant change of government policy, they did. There had also been a failure to carry out a race equality impact assessment, under s 71(1) of the Race Relations Act 1976 before adopting the new policy. However, the Court would not quash the amendment Rules because they did not infringe the Convention rights of the children concerned, there had been an effective Parliamentary debate about them and the whole issue was being reconsidered in good faith in any event.

C v East Sussex Council [2008] EWCA Civ: the Court of Appeal (Thorpe, Wall, Wilson LJJ) held that s 24(5) suspended the entitlement of an adoption agency to place a child for adoption pending the determination of an application to revoke a placement order but not pending the determination of an application for permission to make an application to revoke a placement order. The adoption agency in this case appeared to have placed the child, on the eve of the hearing of the father's application for permission to make an application to revoke a placement order. The Court was powerless (Thorpe LJ dissenting) to assist the father. However, the adoption agency's conduct in deliberately frustrating the legislative scheme and the father's application had been "a disgrace" and "a travesty of good practice" and "provided useful ammunition for those who criticised the family justice system for administering secret justice and who attacked social workers as group for their arrogance and the manner in which they abused their functions by both removing children from their parents unlawfully and by stifling legitimate parental responses".

RP v Nottingham CC [2008] EWCA Civ 462: the Court of Appeal endorsed the role of the Official Solicitor when acting as litigation friend for a parent lacking capacity, in care proceedings involving the parent's child, including the practice of the Official Solicitor, in an appropriate case, of not opposing the making of care and placement orders, purportedly on behalf of the incapacitated mother, when he considered that such was in accordance with her best interests, but against her expressed wishes. The Court made a number of scathing comments about RP's litigation friend, an MP whose position was deeply critical of alleged "secrecy", "corruption" and "malpractice" of the family courts.

Vulnerable Adults

In St Helens BC v PE [2006] EWHC 3460 Fam, (2008) 11 CCLR 7, Munby J made the point that in best interests proceedings where the doctrine of necessity was not engaged, because the proceedings were concerned with broader aspects of the best interests of the incapacitated adult, it was sufficient for declaratory relief merely to state that a particular course of action was in the incapacitated adult's best interests. It was, further, in such contexts desirable to avoid use of the added words "it is lawful [being in X's best interests]" as that might give the appearance of inappropriately requiring particular action from a public authority. Munby J re-iterated that "There is in fact no doubt that the court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the incapable adult's welfare and interests".

In LLBC v TG [2007] EWHC 2640 Fam, (2008) 11 CCLR 161 McFarlane J followed guidance by Charles J in B Borough Council v S [2006] EWGC 2584 Fam, (2006) 9 CCLR 596 about the importance of claimant local authorities ensuring the accuracy of the facts on which an application for ex part relief is sought, with the Judge adding that the expression "liberty to apply" should be changed to a plain recital that "If any person served with this order disagrees with any part of this order and wishes to seek to set aside or vary it, they should make an immediate application to this court to do so". He also held that that the incapacitated adult was not detained for the purposes of Article 5 of the Convention when he was kept at an ordinary residential care home despite the objections of 2 family members, when other family members wanted him to remain there, only ordinary restrictions of liberty at the care home applied and all family members were able to visit and take the incapacitated adult on outings and the incapacitated adult was compliant.

In Local Authority X v MM [2007] EWHC 2003 Fam, (2008) 11 CCLR 119 Munby J held that whilst MM's lack of capacity meant that it was in her best interests to live in supported accommodation and for her relationship with a Mr K to be supervised, MM did have sufficient capacity to decide that she wanted to have sexual relations with Mr K. Accordingly, it was necessary for the local authority to arrange unsupervised periods of time for MM so that she could have sexual relations with Mr K at the supported accommodation. The case contains a very interesting consideration of the interaction between the best interests jurisdiction and Convention obligations. At [2007] EWHC Fam 2689 Munby J commented on and approved the final order.

R(L) v Commissioner of Police for the Metropolis [2007] EWCA Civ 168: in relation to Enhanced Criminal Record Certificates, issued by the Secretary of State under Police Act 1997, Part V, where an applicant seeks employment involving the regular care, training or charge of children, the contents of the ECRC were not limited to criminal convictions, activities or propensities but included anything that a chief officer of police thought might be relevant to the applicant's suitability to undertake the work in question and ought to be included, in this case, a statement that the applicant's son had been put on the child protection register under the category of neglect.

R (Wright and others) v Secretary of State for Health and others [2007] EWCA Civ 999: the provisional listing of a care worker under Care Standards Act 2000, s 82 engaged Article 6; s 82(4)(b) of the Act was not incompatible with the Article 6 because it could be construed (as the result of Human Rights Act 1998, s 3) as implicitly requiring the Secretary of State to give care workers the right to make representations before he made a decision to provisionally list them (except in cases where the Secretary of State reasonably considered that the resultant delay would place a vulnerable adult at risk of harm)

Local Authority X v MM and KM [2007] EWHC 2003 Fam: MM had the capacity to consent to sexual relations but did not have the capacity to litigate, to manage her finances, to decide where and with whom she should live, to decide with whom she should have contact and to marry. It was in her best interests to live in local authority care and to have moderated contact with KM. In those circumstances, however, the local authority were obliged by Article 8 to include in the care plan adequate arrangements for MM to pursue her sexual relationship with KM

A v Hoare [2008] UKHL 6: sex abuse claims are not statute barred after 6 years, but are subject to the 3 year, but extendable, limit at s 33 Limitation Act 1980 (Stubbings v Webb reversed)

Re: G (ET)(a patient) [2007] EWHC 1861 Ch: Morgan J set out the relevant authorities in some detail and authorised the making of lifetime gifts and statutory wills in favour of children of incapacitated adults, under ss 95-96 of the Mental Health Act 1983 (now replaced by similar provisions in the Mental Capacity Act 2005)

RP v Nottingham CC [2008] EWCA Civ 462: the Court of Appeal endorsed the role of the Official Solicitor when acting as litigation friend for a parent lacking capacity, in care proceedings involving the parent's child, including the practice of the Official Solicitor, in an appropriate case, of not opposing the making of care and placement orders, purportedly on behalf of the incapacitated mother, when he considered that such was in accordance with her best interests, but against her expressed wishes. The Court made a number of scathing comments about RP's litigation friend, an MP whose position was deeply critical of alleged "secrecy", "corruption" and "malpractice" of the family courts.

Welsh Ministers v CST/H [2008] EWHC 49 Admin: correct to permit a de-registration appeal to proceed where although the appellant no longer owned the care home she intended to try to resume work in the care field

Ahsan v University Hospitals Leicester NHS Trust [2006] EWHC 2624: the religious views of individuals and the wishes of their family should not be disregarded in deciding how a person should be cared for in the event of supervening mental incapacity

Bicknell v HM Coroner for Birmingham/Solihull [2007] EWHC 2547 Admin: unlawful not to investigate care home death where there was evidence of possible bad care contributing to death


R (European Surgeries Ltd) v Cambridgeshire PCT and the Secretary of State for Health [2007] EWHC 2758: the claimant was an agency that arranged for the provision of medical services. It arranged for Mr C to have a cataract operation on his left eye, carried out in the UK by a German surgeon. Mr C paid privately. The claimant brought judicial review proceedings seeking (a) reimbursement of the cost of the operation from the PCT, (b) a declaration that the PCT was required to reimburse such costs generally, irrespective of the whether an advance authorisation had been provided. Bennett J held that the claim was not justiciable in either English or European law in that Mr C was the only person who had suffered any loss and he was not claiming reimbursement and had not assigned to the claimant any right of action that he had. The claim for general declaratory relief was a claim for an advisory opinion, not related to any individual case, which would be refused as the circumstances of individual patients claiming reimbursement would vary.

R (Esai Limited) v NICE [2008] EWCA Civ 438: it was procedurally unfair of NICE (the National Institute for Clinical Excellence) to make available to consultees, a read-only version of an economic model, in the form of an Excel spreadsheet, used to assess the cost-effectiveness of drugs, and not a fully-executable model. The important public function discharged by NICE might at the lowers have a substantial effect on quality of life and may at the highest save life. Transparency was, therefore, important and the economic model was central to the appraisal of the effectiveness of drug treatments. The robustness or reliability of the economic model was therefore a key question. For the thorough testing of reliability it was necessary to have a fully executable version. There was a dispute between eminent experts as to the disadvantage occurring to consultees as the result of not having a fully executable model but all were agreed that without a fully executable model it was not possible to carry out sensitivity analyses (e.g. inputting reasonable alternative assumptions and inputs and running the model to test its accuracy and validity). In a real sense it was for NICE, as the decision-maker, to check the reliability of the model, but the question whether a model has weaknesses is a matter on which consultees may properly have something to say and fairness required disclosure of a fully executable model for that purpose. Further, the economic model was not, on analysis, subject to a duty of confidentiality owed to its makers; nor did the additional time required, or the possibility for resource-consuming argument, defeat the requirement fairness requirement.

R (A) v Secretary of State for Health [2008] EWHC 855 Admin: failed asylum-seekers entitled to NHS secondary healthcare (because ordinarily resident) (SoH guidance to the contrary was unlawful)

R (Faizovas) v SSJ [NC number not yet available]: OK to handcuff runaway risk chemotherapy prisoner

R (Graham) v SSJ [2007] EWHC 2940 Admin: breach of A3 to handcuff chemotherapy prisoner (he got £500 too)

R (Assura Pharmacy) v NHS Litigation Authority [2007] EWHC 289 Admin: how to decide whether to admit applicants onto the NHS Pharmaceutical List

R (St Helens BC) v Manchester PCT [2007] EWHC 2391 Admin: where there was a dispute between a Council and a Primary Care Trust as to whether a person had a primary health need, although the PCT's role is primary in the light of the way the legislation was framed, the Council also was an expert body, in relation to what constitutes health care, and the Court had no alternative but to do its best to make a decision on the matter brought before it. The PCT could not however be criticised for failing to take into account relevant material unless that failure had been Wednesbury unreasonable. In this case, the PCT had not acted unreasonably in declining to consider medical reports generated by earlier best interests proceedings in the Family Division, had not delegated its decision-making powers to certain panel members and had not reached a Wednesbury unreasonable conclusion (NB the Court of Appeal granted the local authority permission to appeal on the question of whether the PCT decided whether an applicant was an NHS continuing care case or whether, in the event of a dispute between the 2 public authorities, the Court decided)


Way v Poole BC and SENDIST [2007] EWHC 1817 Admin: a decision was not quashed but remitted to SENDIST to enable the same panel to provide greater specificity in Part 3 of the SSEN as to the child's need for intervention, reflecting the conclusions reached by the SENDIST in other parts of its decision R (Hill) v Bedfordshire CC [2007] EWHC 2435 Admin: the Claimant suffered from aspergers syndrome and attended a special school pursuant to a SSEN. When that school closed, when the claimant was 18, the LEA declined to amend the SSEN to name a further education (FE) college, on the ground that funding responsibility for FE lay with the DfES. The LEA also took the view that as the claimant was no longer a registered pupil at a school the LEA was not responsible for him, under s 321 of the Education Act 1996, so that the LEA was entitled to cease to maintain his SSEN with affording a right to appeal to the SENDIST. Wyn Williams J held that the LEA's decision not to fund the FE college using its powers under s 2 LGA 2000 had been unlawful because the LEA had acted under a mistake of fact, in that the LEA had acted on the basis that the parents had failed to approach the LSC (Learning and Skills Council) to see whether they would fund the placement, when the parents had approached the LSC. He also held that the LEA had the power to fund the FE college under s 15A of the 1996 Act but had failed to consider the exercise of that power. He also held that although the LEA was no longer responsible for the claimant under s 321 of the 1996 Act, and were entitled to take the view that they need not maintain the SSEN, the claimant remained a child for the purposes of Part IV of the 1996 Act until he reached 19, the SSEN did not automatically lapse and the parents were entitled to be given the right of appeal on the merits to the SENDIST against a decision to "lapse" or "cease" it (the Judge applied Wolverhampton CC v SENDIST [2007] EWHC 117 Admin.

A v Essex CC [2008] EWCA Civ 364: A was severely autistic and the school named in his SSEN eventually asked his parents to keep him at home because the school had become unable to cope with his challenging behaviour. It took the LEA about 19 months to make alternative school provision (pending which time skeletal educational provision was made). The Court of Appeal (Ward, Sedley, Hughes LJJ) applied Ali v Lord Grey School [2006] 2 AC 363 and held that there had been no breach of A's convention rights. His right under Article 1 of the 1st Protocol was no more than a right of effective access to such educational facilities as the state provides, which was a right that would only be breached in a case of a systemic failure resulting in a lack of access to even a minimum standard of education, including a case where the system itself remained intact but abandoned the child in question. In this case, the system did not break down or abandon A. It took longer to make provision for A than it should have done but the passage of time was intelligibly accounted for, there was no deliberate backsliding, suitable provision was objectively difficult to find and arrange and it was, ultimately, arranged at very great public expense. A and his family had been placed in a very difficult position, but the high threshold of Articles 3 and 8 had not been breached.

Training Available from Garden Court

Mental Capacity Act 2005: advance decisions, lasting powers of attorney, deputies, the court of protection (procedures, forms, principles, powers and practice), deprivation of liberty (and authorisations). A thorough introduction to the new best interests regime including practical examples and guidance:

Mental Health Act 2007: the new definition of mental disorder, the new treatability test, changes to nearest relatives and approved social workers, the new code of practice, deprivations of liberty

Recent Developments in Community Care: case-law from c. 2006, guidance and legislation; current issues and problems

Persons from Abroad and Community Care Law Provision: a comprehensive review of the statutory regime and all the up to date case law as well as practical examples and pointers

Persons from Abroad and Housing Provision: a comprehensive review of the statutory regime and all the up to date case law as well as practical examples and pointers

Ordinary Residence: a comprehensive review of the law relating to ordinary residence under NAA 1948 and CA 1989, including case-law, guidance and determinations by the Secretary of State

Community Care Assessments and Judicial Review: a comprehensive review of the law relating to community care assessments including statutory provisions, statutory and departmental guidance and case-law, with particular reference to the relationship between assessments and judicial review

Fair Access to Care Services: implementing and revising the FACS eligibility criteria

NHS Continuing Care: the new regime

NHS judicial review: treatment decisions
Accommodating vulnerable persons: update on priority need under Housing Act 1996, Part VII, recent developments in relation to accommodation under National Assistance Act 1948, s 21 and Children Act 1989, ss 17 and 20

Recent Developments in Education Law: statute, guidance and case law

Recent Developments in Mental Health: statute, guidance and case law

Article 5: the law relating to patients, care home residents and prisoners

Recent Developments in Prison Law: statute, guidance and case law

General Note: every course provides CPD points, includes detailed written material, allows for questions and discussion during and after the presentation and can be modified to suit the particular requirements of the audience. In particular where a longer course is provided there is scope for detailed consideration of locally relevant issues. For further details please contact Naomi at Garden Court Chambers on 020 7993 7671 or by email

If you do not wish to continue to receive community care updates, please email

This bulletin was written and produced by Stephen Knafler, Barrister at Garden Court Chambers.


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