Issue 3 - 31st July 2008

Thursday 31 July 2008

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News

Report: Improving the Mental Health and Psychological Well-Being of Children and Young People, 29 July 2008, Department for Children, Schools and Families (DCSF): Reports the interim findings of an independent review, sponsored by the DCSF and the Department of Health, aimed at ensuring that the educational and psychological needs of all children and young people with mental health problems, or those at risk of developing them, are being met. States that there have been notable improvements in how services promote and protect the psychological health and wellbeing of children and young people, but that there is still a great deal more to do.

Press Release: Extra Cash and More Summer Schools for Gifted and Talented Pupils, 28 July 2008, Department for Children, Schools and Families (DCSF): Announces that Schools Minister Andrew Adonis today unveiled a package of support to encourage disadvantaged "gifted and talented" pupils to apply for some of the country's top universities.

Press Release: Social Tariffs Must Equal Suppliers' Cheapest Deals, 25 July 2008, Office of Gas and Electricity Markets (OFGEM): Announces that energy regulator has OFGEM today moved to clear away confusion surrounding social tariffs -- energy deals for vulnerable customers and fuel poor customers (those spending more than a tenth of their income on energy).

Report: Disability Living Allowance -- Disallowed Claims, 24 July 2008, Department for Work and Pensions (DWP): Examines the extent to which those applying for Disability Living Allowance (DLA) understand the purpose of the benefit and the qualifying conditions, presenting the findings from 100 face-to-face interviews with DLA applicants of working age whose claims were disallowed. The aim of the research was to explore the reasons why there are so many applications from people who clearly do not qualify for DLA and who would therefore be unsuccessful. The findings will be used to design appropriate operational strategies for improving the targeting and efficiency of the claims' process.

Press Release: parents of tearaways will face eviction, 15 July 2008, Daily Telegraph: Parents of troublesome teenagers will face intensive coaching courses and could be evicted from their council houses under plans to be announced by ministers

Press Release: Councils Launch Court Fee Challenge,14 July 2008, Law Society Gazette, (2008LS Gaz, 10 Jul, 1 (1): Looks at four local authorities who have joined forces to launch a judicial review against the government, claiming that new powers forcing councils to bear the full cost of child-care cases are unlawful. Since May, local authorities have been obliged to foot the bill for child-care proceedings as part of a government drive to make the courts entirely self-funding through court fees. Ministers also said the change would deter councils from launching care proceedings unnecessarily or prematurely.

Press Release: Vulnerable People to Benefit as Majority of Local Councils Make Third Sector a Top Priority, 30 June 2008, Cabinet Office: Announces that, according to the Cabinet Office, the most vulnerable people in local communities stand to benefit more than ever from the support of charities, voluntary groups and social enterprises, since the majority of England's local councils have made it a top priority to have an active and thriving third sector.

Under a new system put in place in 2008, all top tier local authority areas will be measured on their performance against 198 new National Indicators (NIs), two of which focus on the third sector. In addition, each area has had the opportunity to prioritise 35 NIs that will particularly meet local needs, and will be the targets that sit at the heart of each council's Local Area Agreement (LAA).

Legislation

Health and Social Care Act 2008, Royal Assent Date 21 July 2008, Commencement date partly 21 July 2008, fully to be appointed: Establishes an integrated regulator, the Care Quality Commission, in place of the Commission for Healthcare Audit and Inspection, the Commission for Social Care Inspection and the Mental Health Act Commission; makes improved provision for the registration and regulation of health and social care professionals, with appeals to the Care Standards Tribunal; establishes an independent Office of the Health Professions Adjudicator to dealt with fitness to practice issues; contains provision for health care standards and performance reviews; contains public health measures and a range of smaller measures. Noteworthy is s 145 (the provision of accommodation together with nursing or social care under arrangements under s 21 or s 26 of the NAA 1948 is to be taken as the exercise of a function of a public nature), s 146 (direct payments in respect of persons who lack mental capacity) and s 148 (amendment of the ordinary residence provisions of s 24 of the NAA 1948).

Childcare (Fees) Regulations 2008, SI 2008/1804, Commencement date 1 September 2008: Makes provision about fees payable by providers of childcare who are registered in either the early years register.

Childcare (Inspections) Regulations 2008, SI 2008/1729, Commencement date 1 September 2008: Makes provision about inspections by Her Majesty's Chief Inspector of Education, Children's Services and Skills of childminding and other childcare provision registered under the Childcare Act 2006, Pt 3. The Regulations prescribe the intervals at which early years provision must be inspected, and make other provision about notifications of inspections, and inspection reports.

Childcare (Disqualification) (Amendment) Regulations 2008, SI 2008/1740, Commencement date 1 September 2008: Amends SI 2007/723 to ensure that persons barred from regulated activity relating to children are disqualified from registration in England as providers of early years or later years childminding or other early years or later years provision. The Chief Inspector cannot waive where the disqualification arises from the new regulation. Provides that persons registered have a continuing duty throughout the period of their registration to provide information to the Chief Inspector in relation to any order, determination, conviction or other ground for disqualification from registration.

Adult Services

LGO Report, 18 July 2008: Local Government Ombudsman, Tony Redmond found maladministration when Camden LBC made a woman bankrupt for non-payment of council tax, even though she had mental health difficulties and was unable to conduct her own affairs. He said the Council knew of the woman's problems, but the Revenue department did not find this out because it failed to make effective internal enquiries. Had it done so, the Council would most likely have taken different steps, with less serious consequences. The Council agreed to apply to the court to annul the bankruptcy. If the bankruptcy is annulled the Ombudsman recommended that the Council contact credit rating agencies to advise them. The Ombudsman also recommended the Council change its procedures to make stringent checks for potential vulnerability before taking action leading to bankruptcy, a charging order or committal.

X v Croatia (App No 11223/04), 17 July 2008, European Court of Human Rights, Judge Rozakis (President), Judges Vajic, Kovler, Steiner, Hajiyev, Spielmann, Jebens, and Mr S Nielsen (Section Registrar): The applicant was awarded €8,000 in non-pecuniary damages for a violation of her right to family life under art 8 of the European Convention on Human Rights on account of the fact that the authorities had allowed her daughter to be given up for adoption without her knowledge, consent or participation.

Command Paper (Cm 7450): Domestic Violence, Forced Marriage and "Honour"-Based Violence, 23 July 2008, Home Office: Sets out the government's response to the 111 separate recommendations and conclusions of the House of Commons Home Affairs Committee report, "Domestic Violence, Forced Marriage and 'Honour'-Based Violence", published on 13 June 2008.

Consultation Response: Marriage Visas: The Way Forward, 23 July 2008, Home Office: Sets out government proposals following two consultations published by the UK Border Agency (UKBA) in December 2007, "Marriage to partners from overseas" and "Marriage visas: pre-entry English requirement for spouses". The former consultation asked for views to inform new arrangements governing the issue of marriage visas and applications for permanent residence, whilst ensuring that those who are at risk of being pressurised into marriage to a partner from overseas are protected. The latter asked for views about whether to require overseas spouses to demonstrate some knowledge of English before arrival.

Report: Experiences and Expectations of Disabled People -- A Research Report for the Office for Disability Issues, 18 July 2008, Department for Work and Pensions (DWP): Commissioned by the Office for Disability Issues, reports the views of almost 2000 disabled people in Great Britain on a range of the issues, including employment, education, transport, health and discrimination.

Article: Plans for Adult Social Care Law Reform Published, Luke Clements, Legal Action, 1 July 2008: Explains the Law Commission's proposals for the legislative reform of adult social care law, which it describes as "inadequate, often incomprehensible and outdated". The commission acknowledges the daunting nature of the reform exercise and stresses the necessity for a positive commitment by government to the process. The Law Commission is considering whether 1 statute can deal with all of adult social care: http://www.lawcom.gov.uk/1122.htm.

Lettings International Ltd v Newham Borough Council [2008] EWHC 1583 QB, Silber J: Where the claimant property management company had brought proceedings against the defendant local authority alleging that the authority had acted in breach of the Public Contract Regulations 2006 (SI 2006/5) in rejecting its tender to enter into framework contracts, the authority had acted unfairly without the requisite transparency, and contrary to the regulations first, by failing sufficiently to disclose contract award criteria and weightings in advance and second, by failing to apply those criteria which had been disclosed.

LGO Reports, 4th July 2008: Local Government Ombudsman, Anne Seex found a disabled man suffered unnecessary indignity and inconvenience as a result of Sheffield City Council's failures over the adaptation of his home to meet his needs. The LGO said that the man spent 10-14 weeks without access to washing facilities or a toilet, and had to borrow £10,000 from relatives to fund the adaptations. The LGO welcomed the Council's actions in providing a remedy for the injustice the complainant suffered, by apologising, paying £2,000 compensation, reimbursing the £14,340 costs he had incurred himself, and taking action to review its procedures. She made similar findings in another case involving Kirklees Council, published on the same date. There had been an earlier similar report, dated 20th November 2007, in relation to Leeds City Council. More info

Daroczy v Hungary (App No 44378/05), 1 July 2008, European Court of Human Rights, Judge Tulkens (President), Judges Cabral Barreto, Zagrebelsky, Jociene, Sajo, Tsotsoria and Karakas, and Mrs S Dolle (Section Registrar): The applicant was awarded €3,500 in non-pecuniary damages for a violation of her right to respect for private life under art 8 of the European Convention on Human Rights, following the authorities' decision not to allow her to revert to her birth name after the death of her husband.

Lewisham LBC v Malcolm [2008] UKHL 43 (Bingham, Scott, Hale, Brown, Neuberger): M had schizophrenia, stabilised by medication. Before completing a right to buy of his council flat, he had sublet it, thereby losing security of tenure. He had not been taking medication at the time of the sublet. The local authority discovered the sublet and issued possession proceedings. The local authority was not aware that M had schizophrenia but it was, ultimately, accepted that M would probably not have entered into the sub-letting had it not been for his schizophrenia. The House of Lords held that there had not been any breaches of Disability Discrimination Act 1995: (1) The local authority had not known that M had schizophrenia serving the notice to quit and taking possession proceedings. It was not enough for M to show that, objectively, there may have been a causal connection between the sublet and his disability. He had to show that his mental condition played some motivating part in the local authority's decision to terminate his tenancy and recover possession. That he had not done. The local authority's reason was that M had sublet and moved out, Taylor v OCS Group Ltd [2006] EWCA Civ 702, [2006] ICR 1602 applied; (2) Parliament intended that the comparison directed by s.24(1)(a) be meaningful, to distinguish between treatment that was discriminatory and treatment that was not. If a tenant had been given notice terminating his tenancy because he had sublet in breach of the tenancy agreement, there was no point in making the lawfulness of the action taken by his landlord dependant on whether notice to quit would have been served on tenants who had not sublet. The statutory comparator would be a secure tenant with no mental illness who had sublet. Such a tenant would have received no different treatment from the local authority than M received. There was no less favourable treatment meted out to M and therefore no discrimination, Clark v TDG Ltd (t/a Novacold Ltd) [1999] 2 All ER 977overruled; (3) (Baroness Hale) Parliament could have chosen a form of words which made it plain that it intended the comparison to be made under s.24(1)(a) to be with people who did not have the disability in question, but Parliament deliberately chose a different formulation. The comparison in the present case ought to be made with people who had not sublet.

Ealing LBC v KS and others [2008] EWHC 636 Fam: declaratory relief in best interests proceedings in relation to capacity to consent to marriage and capacity/best interests in relation to medical treatment and residential placements.

AK v Central and North West London Mental Health NHS Trust and Kensington & Chelsea RLBC [2008] EWHC 1217 QB: it was arguable that a person could succeed in a claim for damages for the negligent failure to provide social care services under Mental Health Act 1983, s 117.

Shtukaturov v Russia (App. No 44009/05), 27th March 2008, European Court of Human Rights, Judges Rozakis, Vajic, Kovler, Hajiyev, Spielman, Malinverni, Nicolau: incapacity proceedings had violated Articles 3, 5, 6 and 8 of the Convention in that the judge had neither seen nor heard from the person concerned, the order of incapacity was unnecessarily extensive and the person's subsequent detention had been arbitrary.

A PCT v P [2008] EWHC 1403 Fam, the President affirmed Munby J's decision in Re GJ, NJ. BJ (Incapacitated Adults) [2008] EWHC 1097 Fam, that Article 5(4) of the Convention required that orders in BI proceedings that resulted in deprivation of liberty required to provide for a series of reviews of the deprivation.

Peters v East Midlands SHA [2008] EWHC 778 (QB), Butterfield J: The claimant (C) brought a claim for damages for personal injuries, loss and damage sustained by her in consequence of the negligent failure of the defendant health authority (E). E joined the local authority as defendants in the proceedings under CPR Pt 20. The Court held that (1) Due to her severe disability C did not have nor would ever have any assets, other than such damages as awarded in the instant proceedings, for the purposes of contributing to the cost of her care under s.22 of the NAA 1948. The correct interpretation of sch.10 para.44(a) of the Income Support (General) Regulations 1987 was that in making any assessment of C's capital for the purpose of determining her liability to reimburse the local authority for the cost of her residential accommodation and care, the whole amount of any award to C in the instant proceedings was to be disregarded, Firth v Geo Ackroyd Junior Ltd (2001) PIQR Q4 QBD applied. Therefore, the local authority could not lawfully seek any reimbursement for the costs of such accommodation and care from C's capital. Income derived from the capital award to C was also to be disregarded, Crofton v NHS Litigation Authority (2007) EWCA Civ 71, (2007) 1 WLR 923 applied; (2) In light of the high cost of keeping C at the level of care that she had become accustomed to, it was highly unlikely that she would be accommodated in an equivalent care home for life if she remained funded by the local authority. Therefore, E failed to establish that C's reasonable need for care in the future would be provided by the local authority. The only way to ensure that C received such care in the future was for her to be self-funding and E was therefore liable to pay C's past and future costs for care; (3) With regards to the issue of double recovery, it was correct that C could not recover the same loss twice. C had claimed that she did not wish to be dependent on overstretched public resources, and in the circumstances C was to recover her loss from E instead of recovering it from the local authority.

Children's Services

Guidance: May 2008, DCLG and DCSF: on joint working between housing and children's services to reduce and prevent homelessness

Consultation Paper: Safeguarding Children from Sexual Exploitation, 18 July 2008, Department for Children, Schools and Families (DCSF): Consults on draft guidance which aims to provide practitioners across all relevant agencies and the voluntary and community sector with information about different forms of sexual exploitation to help them identify and safeguard children and young people who are at risk of sexual exploitation, or who are being sexually exploited. The guidance will replace the current guidance, "Children involved in Prostitution", issued in 2000 and will be supplementary guidance to "Working Together to Safeguard Children". It will be statutory for local authorities and will also be issued as a circular to police forces (as with the guidance that it replaces). It is aimed at Local Safeguarding Children Board (LSCB) partners, practitioners and other professionals working with children and young people.

Report: Department for Children, Schools and Families: Progress and Next Steps, 17 July 2008, Cabinet Office: Details the findings of the DCSF Capability Review team, which has been assessing the performance of the Department against three objectives: leadership, strategy and delivery.

Pierce v Doncaster MBC [2007] EWHC 2968 (QB), Eady J: The failure of a local authority to carry out the necessary statutory review prior to returning the claimant to parental care, and the decision to reunite him with his parents in the knowledge of the adverse home circumstances had fallen short of the standard of practice to be expected of a reasonably competent local authority and had thereby amounted to a breach of duty, for which the claimant would be compensated. In the circumstances, and in the light of the guidance in KR v Bryn Alyn Community (Holdings) Ltd (In Liquidation) (2003) EWCA Civ 85, (2003) QB 1441 on quantum in child abuse cases, the right figure for general damages was £25,000, Bryn Alyn applied.

R (on the application of Liverpool City Council) v Hillingdon London Borough Council [2008] EWHC 1702 (Admin), James Goudie QC sitting as a deputy judge of the High Court: Where a dispute had arisen between two local authorities in relation to the responsibility for accommodating AK, a putative child and failed asylum seeker, the court held that, in all the circumstances, that responsibility lay with the claimant. Moreover, pending the outcome of an age assessment, AK fell to be accommodated as a child. The claimant's initial responsibility for AK had to have ceased once he was removed from the area having been detained by the Home Office agencies. He then became the responsibility of the defendant once discharged within its area. However, he then left the defendant's area, fully in accordance with his undoubted wishes, and went where he clearly and firmly wanted to go, assisted by the defendant. The defendant's responsibility of AK ceased once he had retuned to the claimant's area. In those circumstances, the claimant was solely responsible for AK. Moreover, as a putative child in need within its area who required accommodation as a result of their being no person who had parental responsibility for him, he fell to be accommodated as a child.

A v Wirral Metropolitan Borough Council [2008] EWCA Civ 783, May, Keene and Smith LJJ: Applying the objective test under s 14 of the Limitation Act 1980, the claimant had known at all times that his psychiatric injuries suffered as a result of sexual abuse occurring at the age of 15, in 1970, were significant. Accordingly, the judge had been wrong to find that the claimant had not known that his psychiatric injuries were significant and attributable to the abuse until 2001. Accordingly, the claimant could not rely on those ss 11 and 14 of the Act to postpone the time at which time began to run against him for limitation purposes. Time had begun to run from the date of his majority and ran out in 1976. The case would be remitted to the judge to exercise his discretion under s 33 of the Act. A v Hoare and other appeals [2008] 2 All ER 1 applied; KR v Bryn Alyn Community (Holdings) Ltd (in liq) [2004] 2 All ER 716 not followed; Stubbings v Webb [1993] 1 All ER 322 considered.

R (on the application LW) v North Lincolnshire Council [2008] All ER (D) 34 (Jul), Judge Mackie QC sitting as a judge of the High Court: An application for judicial review was allowed, where a decision of the defendant local authority that the claimant, aged 16, had not been accommodated pursuant to s 20 of the Children Act 1989 after his 16th birthday, and therefore, that he was not an eligible child who was entitled to a personal advisor or a pathway plan, had been unlawful. The authority had sought to fulfill its duty under s 17 of the Act, in circumstances where it had actually owed a duty under s 20.

R (M, A) v Lambeth LBC and others [2008] EWHC 1364 (Admin), Bennett J: local authorities had assessed applicants for accommodation under Children Act 1989, s 20 as being adults and the applicants challenged those assessments. The Court determined as preliminary issues that: (1) the right given by CA 1989, s 20 was not a civil right within Article 6 of the Convention. The age assessment did not determine a civil right it was part of the s 20 determination, which was not the determination of a civil right; (2) Parliament intended the local authorities to evaluate the ages of applicants and it was not appropriate therefore for the doctrine of precedent fact to be applied in respect of an assessment, part of which necessitated determining their ages. Lambeth LBC v TK[2008] EWCA Civ 103, [2008] 1 FLR 1229 was distinguished: that case decided that where the Family Division was seized of a case in which it had ordered an investigation under s 37 of the 1989 Act it was not for the local authority to frustrate its order; (3) The local authority social worker who carried out M's age assessment following the decision of the AIT did so with the decision of the AIT before her. She had very considerable experience of assessing the age of young persons and had spent two hours interviewing M. She did have proper regard for the AIT's determination and analysed its reasoning but felt compelled to differ on proper and rational grounds.

R (C) v SS for Justice [2008] EWCA Civ [tba], Buxton, Tuckey, Keene LJ: The failure to produce a race equality impact assessment prior to laying the Secure Training Centre (Amendment) Rules 2007 before Parliament was a defect in the procedure that was of substantial, and not merely technical, importance and the rule of law and the proper administration of race relations law required the Rules to be quashed. It sent out the wrong message to public bodies with responsibilities under s.71 of the 1976 Act to allow that deficit to be cured by a review only undertaken eight months after the amendments had been laid. Although one could not doubt the good faith of a civil servant, who had produced an impact assessment that showed that physical control in care had not been applied in a discriminatory manner, as a matter of principle it could not be right that a survey that should have been produced to inform the mind of the government before it took the decision to introduce the amendments was only produced in order to attempt to validate the decision that had already been taken. The failure to produce the assessment was defect in the procedure that was of very great substantial, and not merely technical, importance. In the circumstances, the reasons given by the judge for not quashing the amendments were mistaken and the rule of law and the proper administration of race relations required the amendments to be quashed. Further, a system of physical control in care of its very nature engaged art.3. The secretary of state could not establish that that system was necessary for ensuring good order and discipline. As regards art.8, the system was not necessary in a democratic society and, therefore, not justified.

R (G) v Southwark LBC [2008] EWCA Civ 877, Pill, Rix, Longmore LJJ: it was lawful to provide a homeless teenager with a referral to the housing department for accommodation under Part 7 of the Housing Act 1996 and not to provide him with accommodation under s 20 of the Children Act 1989, when the social worker assessed the teenager as resourceful and not vulnerable.

Education

Special Educational Needs (Information) Act 2008: relates to the provision and publication of general information about children with SEN by the Secretary of State.

Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2008, SI 2008/1724, Commencement date 1 September 2008: Provide that local authorities are to secure early years childcare provision free of charge for 38 weeks in a year and for twelve and a half hours during each of those 38 weeks, for children of a certain age by reference to school term dates. Local authorities are obliged to read the Code of Practice on the Provision of Free Nursery Education Places for Three and Four Year Olds, Published by the Department for Education and Skills.

R (on the application of E) v Governing Body of the Jews Free School and others
R (on the application of E) v Office of The Schools Adjudicator and others
 [2008] EWHC 1535 (Admin), Munby J: The claimant, E, the claimant in both applications, applied to the defendant, in the first application, the Governing Body of the Jews Free School (JFS), for his son, M, to be admitted to their school for the academic year 2007/08. His former wife, M's mother, was of Italian national and ethnic origin. Before she and E married she was converted to Judaism under the auspices of the rabbi of an independent Progressive synagogue. M was therefore, in E's eyes, and doubtless in the eyes of many who would have considered themselves Jews, of mixed Jewish and (through the maternal line) Italian ethnic origin. M was recognised as Jewish by the Reform synagogues of Great Britain and the Assembly of Masorti synagogues, practises his own Jewish faith, prays in Hebrew and attends synagogue and a Jewish Youth Group. Having been informed of the JFS's admissions policy (see paras [31-32]), E wrote to JFS objecting to the request for information concerning M's mother's halachic status. The Headteacher of JFS wrote to E informing him that JFS was unable to offer M a place at the school on the ground that they had not received evidence of M's Jewish status, and on the ground that it would not be possible to consider M for a place unless and until all those applicants whose Jewish status had been confirmed and had been offered places (the refusal). E appealed to JFS's Admissions Appeal Panel (the Panel). The hearing of the appeal took place, and by a letter, the Panel dismissed E's appeal. The panel concluded that it had no jurisdiction to consider or determine his grounds of appeal (the appeal decision). M began his secondary education at another school. On 2 July 2007, E made an objection to the defendant in the second application, the Schools Adjudicator (the Adjudicator), concerning JFS's admissions policy for the year 2007/08. The Adjudicator held a hearing at which E's legal representative challenged JFS's admissions policy criteria. E made two applications for judicial review. The first application challenged the refusal, the appeal decision, and the alleged continuing failure or refusal of JFS to discharge their duties under s 71 of the Race Relations Acts 1976. The second application challenged the decision of the Adjudicator determining E's objection.

E submitted, inter alia, that JFS's admission policy was unlawful in that it had discriminated directly or indirectly on racial grounds against children who were not of Jewish ethnic origin or descent through maternal line. He contended that the Panel had acted unlawfully and unfairly in dismissing his appeal in that it had wrongly concluded that it had no jurisdiction to consider or determine his grounds of appeal. He further argued that JFS's Race Equality Policy (see para [28]) had failed to comply in full with the requirements of s 71 of the 1976 Act.

The applications for judicial review would be dismissed
(1) In the circumstances, there had not been any direct race discrimination. The discrimination had been based on religion, not on race or ethnic origin, and had not been discrimination on grounds of race (ethnic origin) merely because the relevant religious belief had defined membership of the group by reference to descent.
Accordingly, the claim based on alleged direct racial discrimination would fail.
(2) The admissions policy of JFS could comfortably be justified as being, within the meaning of s 1A of the Act, a 'proportionate means of achieving a legitimate aim'.
Accordingly, the claim based on alleged indirect race discrimination would fail.
(3) In the circumstances, JFS, despite the good intentions embodied in its Race Equality Policy, and despite the work which had obviously gone into it, had failed to comply in full with the requirements of s 71 of the Act. Accordingly, E, if he wished, would be entitled to a declaration to that effect. But the breach had not entitled him to any other relief against JFS. For it was quite idle to imagine that the fullest and most conscientious compliance with s 71 would have led to any difference either in the crucial part of JFS's admissions policy or in its application in M's case.
Accordingly, E would be entitled to declaratory relief against JFS based on an alleged breach of s 71 of the Act.
(4) In all the circumstances, there had been no material unfairness on the part of the Panel, and neither E nor M had suffered any prejudice. Whether looked at in detail or assessed in the round, E had a full and fair hearing before the Panel. Nothing had happened to undermine the overall fairness of the proceedings. E had been quite unable to demonstrate that he or M had suffered any possible prejudice as a result of anything that had either happened or had not happened.
Accordingly, the ground of complaint based upon procedural unfairness would fail.

Health

I v Finland (App No 20511/03), 17 July 2008, European Court of Human Rights, Judge Bratza (President), Judges Garlicki, Mijovic, Thor Bjorgvinsson, Sikuta, Hirvela and Poalelungi, and Mr T Early (Section Registrar): the applicant was being treated for the HIV virus at the hospital at which she worked. Following her complaint that the hospital had failed to prevent unauthorised access to her medical records, the European Court of Human Rights held that that failure had violated her right to respect for her private life, contrary to art 8 of the European Convention on Human Rights. Accordingly, the applicant was entitled to just satisfaction in respect of non-pecuniary loss pursuant to art 41 in the sum of €8,000.

Common Services Agency v Scottish Information Commissioner [2008] UKHL 47, Lord Hoffmann, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Mance: It had been open to the Scottish Information Commissioner to hold that "barnardised" data of details, by census wards, of all incidents of leukaemia for both sexes by year from 1990 to 2003 for all of the Dumfries and Galloway postal area would constitute "personal data" within the Data Protection Act 1998 s.1(1). The commissioner had erred in law in failing to ask himself whether the barnardised data was personal data within s.1(1) and, if so, whether its disclosure to a representative of a Member of the Scottish Parliament would satisfy the disclosure principles.

R (Bapio) v SSHD [2008] UKHL 27, (Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance): In the autumn of 2005, the Department of Health had reviewed its position on the recruitment by the NHS of international medical graduates (IMGs). There had been considerable increases in the number of medical graduates emerging from medical schools in the United Kingdom who were UK nationals, and there was no longer perceived to be an NHS need to recruit IMGs. The DoH had issued guidance to the effect that, when NHS employers were looking for junior doctors to fill postgraduate training positions, applicants who were not nationals of the United Kingdom or any other European Economic Area Member State, and whose leave to remain in the UK would not extend beyond the duration of the position on offer, should not be offered the position unless there were no suitable candidates who were UK or EEA nationals.
HELD: (Lord Scott dissenting) (1) (Per Lord Mance, Lord Rodger) The guidance was unlawful. The grant of Highly Skilled Migrant Programme (HSMP) status to IMGs within the UK who enjoyed such status at the date of the guidance had undoubtedly given those persons a legitimate expectation that they would be able to seek and obtain employment in the fields of their skill. The guidance would have undermined their legitimate expectations in a very fundamental way. They would have come here intending to make the UK their main home. Their decision to come would necessarily have taken account of the prospect of employment in the NHS. Before the guidance, the normal practice was for leave to stay with HSMP status to be renewed without difficulty, provided the requirements for renewal were met. Even if the attrition rate for IMGs with HSMP status was in practice high, IMGs with that status would have expected to be able, if they wished, to stay here and be employed in the NHS until the time came when their leave could be made indefinite. The introduction of a resident labour market test for those whose limited leave expired before the end of the post on offer would radically undermine that expectation. That could have been done by amending the immigration scheme, which would at least have involved a measure of Parliamentary scrutiny. But, by issuing the guidance, the Secretary of State for Health, as one emanation of the Crown, was exercising her prerogative to give informal guidance inconsistently with the legitimate expectations generated by the Immigration Rules and the practice adopted by another emanation of the Crown, the Home Secretary. The inconsistency and its effects were so profound as to render such guidance invalid. (2) (Per Lord Bingham) The guidance was unlawful. The Department of Health's object "was to require that IMGs who had certain categories of limited leave to enter or remain in the United Kingdom (apart from those recognised as refugees) be treated as if they required a work permit to enter training positions in the NHS if the duration of their leave did not cover the duration of the training position for which they were applying". In other words, a new term, unwritten and formally unauthorised, was being silently introduced into their permissions.

AK v Central and North West London Mental Health NHS Trust and Kensington & Chelsea RLBC [2008] EWHC 1217 QB: it was arguable that a person could succeed in a claim for damages for the negligent failure to provide social care services under Mental Health Act 1983, s 117.

Report by the Public Services Ombudsman for Wales, 23 May 2008: Cardiff Local Health Board had reached a flawed decision about eligibility for NHS continuing care in that its rationale was incompatible with the primary health care need approach, as set out in Welsh Assembly Government Guidance and case-law and there it did not have an appropriate foundation; which was maladministration

R (Compton) v Wiltshire PCT [2008] EWCA Civ 749, Waller LJ, Buxton LJ, Smith LJ: The appellant primary care trust appealed against a decision ((2007) EWHC 2769 (Admin)) not to reconsider a protective costs order in favour of the respondent (C), and both C and the trust appealed against a protected costs order made in related proceedings. C had obtained permission to apply for judicial review of a decision by the trust to close a day hospital facility at one of its hospitals. C also obtained, on a paper application, a protective costs order that the trust should not be entitled to recover costs against her, and which also capped the costs that C could recover from the trust. HELD: (Buxton LJ dissenting) (1) When considering whether a protective costs order should be granted the two-stage tests of general public importance and the public interest in the issue being resolved were difficult to separate. The criteria set out in Corner House were not to be read as statutory provisions or read in an over-restrictive way. The criterion that the issues raised had to be of "general" public importance did not mean that they had to be of interest to all the public nationally. Exceptionality was not an additional criterion but a prediction as to the effect of applying the principles of Corner House. When deciding the terms of the order in a case where a party sought to represent others, the court was entitled to take into account whether the others had the means to support the action. The jurisdiction to grant a protective costs order was concerned with enabling actions to be brought and was concerned to hold the balance so far as it could between the parties. In the instant case, where C was bringing an action to obtain resolution of issues as to the closure of parts of a hospital that affected a wide community, and where that community had a real interest in the issues that arose being resolved, it had been open to the judge to find that there was a public interest in resolution of the issues and that the issues were ones of general public importance. (Per Smith LJ) As a matter of common sense, justice and proportionality, when exercising his discretion whether to make an order and if so what order, the judge should take account of the fullness of the extent to which the applicant had satisfied the five criteria in Corner House. (2) Whether a protected costs order considered on paper fell within CPR r.23.8(b) or (c) was irrelevant to the test on an application for setting aside or variation. A defendant had a right to apply to set aside, vary or discharge a protective costs order, but as the defendant had an opportunity to put its points on paper to the judge, it would require compelling reasons to alter the order made. The procedure laid down in Corner House was not unfair to a defendant. There was an analogy, albeit imprecise, with CPR r.52.9. In the instant case, there were no compelling reasons to set aside the order. (3) (Per curiam) The procedural guidelines in Corner House should be followed in the Court of Appeal. If the recipient of the protective costs order in the court below was wishing to appeal, an application for an order should be lodged with an application for permission. The respondent should have an opportunity of providing written reasons why an order was appropriate. The decision would be taken on paper by the single Lord Justice. If an order was refused the applicant could apply orally. If it was granted then a respondent would need compelling reasons to set it aside. On appeals from refusal to grant an order, or against an order, the matter should be dealt with by the single Lord Justice on paper and the normal order should be no order for costs save in exceptional circumstances.

Peters v East Midlands SHA [2008] EWHC 778 (QB), Butterfield J: The claimant (C) brought a claim for damages for personal injuries, loss and damage sustained by her in consequence of the negligent failure of the defendant health authority (E). E joined the local authority as defendants in the proceedings under CPR Pt 20. The Court held that (1) Due to her severe disability C did not have nor would ever have any assets, other than such damages as awarded in the instant proceedings, for the purposes of contributing to the cost of her care under s.22 of the NAA 1948. The correct interpretation of sch.10 para.44(a) of the Income Support (General) Regulations 1987 was that in making any assessment of C's capital for the purpose of determining her liability to reimburse the local authority for the cost of her residential accommodation and care, the whole amount of any award to C in the instant proceedings was to be disregarded, Firth v Geo Ackroyd Junior Ltd (2001) PIQR Q4 QBD applied. Therefore, the local authority could not lawfully seek any reimbursement for the costs of such accommodation and care from C's capital. Income derived from the capital award to C was also to be disregarded, Crofton v NHS Litigation Authority (2007) EWCA Civ 71, (2007) 1 WLR 923 applied; (2) In light of the high cost of keeping C at the level of care that she had become accustomed to, it was highly unlikely that she would be accommodated in an equivalent care home for life if she remained funded by the local authority. Therefore, E failed to establish that C's reasonable need for care in the future would be provided by the local authority. The only way to ensure that C received such care in the future was for her to be self-funding and E was therefore liable to pay C's past and future costs for care; (3) With regards to the issue of double recovery, it was correct that C could not recover the same loss twice. C had claimed that she did not wish to be dependent on overstretched public resources, and in the circumstances C was to recover her loss from E instead of recovering it from the local authority.

 

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