Issue 5 - 1st December 2008

Monday 1 December 2008

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Legislation (a selection)

Mental Health Act 2007 (Consequential Amendments) Order 2008, SI 2008/2828, commencement 3 November 2008 except for arts 11, 12, 13, 14, 17 (b), 18 (b), 19 (b) which come into force on 4 May 2009: consequential amendments made to four acts and 11 eleven SI's as a result of the commencement of the Mental Health Act 2007.

Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2008, SI 2008/Draft, Independent Barring Board introduces barred list to protect children and vulnerable adults, intended to come into force in January 2009 and for the purposes of the full implementation of the Safeguarding Vulnerable Groups Act 2006, Schedule 3 (Barred Lists), which is planned for October 2009.

Adults Services

In Report of an Investigation into complaint no 07/A/01436 against the London Borough of Hillingdon the Ombudsman found maladministration causing injustice in that the Council failed to adequately investigate complaints about the quality of home care provided to "Mr Davey"; placed Mr Davey in residential care without proper regard to his and family's wish that he remain cared for at home; failed to give adequate information about care home charges; and failed to keep proper records.

Casewell v SSWP [2008] EWCA Civ 524, Court of Appeal (Tuckey, Rix, Auld LJJ): direct payments under section 57 of the Health and Social Care Act 2001 fell to be treated as income in the hands of the carer, for the purpose of income support means-testing (thereby reducing entitlement).

Renolde v France (App No 5608/05), 16 October 2008, European Court of Human Rights
(Judges Lorenzen Maruste, Costa, Jaeger, Villiger, Berro-Lefevre, and Kalaydjieva, and C Westerdiek): a punishment of 45 days' solitary confinement on a mentally ill prisoner had been incompatible with Article 3; then, the State had failed in breach of Article 2 to take reasonable steps to prevent him committing suicide.

Suslin v Russia (App No 34938/04), 23 October 2008, European Court of Human Rights (Judges Vajic Kovler, Hajiyev, Spielmann, Jebens, Malinverni and Nicolaou, and A Wampach): in breach of Article 6 proceedings relating to the payment of the claimant's his disability allowance as a Chernobyl victim lasted in excess of four years. The Court European Court of Human Rights awarded the applicant €3,500 damages.

R (on the application of Rutter) v Stockton-on-Tees BC [2008] All ER (D) 37 (Oct): the local authority's decision to close a residential home within which the claimant had received care was not unlawful; the question of the impact which relocation would have on the claimant's health and life had been properly considered.

Children's Services

R (M) v Birmingham CC [2008] EWHC 1863 (Admin),(Charles J): it was lawful to have a policy to pay a residence order allowance only in cases where if the child was not residing with the carer concerned the local authority would have to take care proceedings, and in other "near miss" situations; however, in this case, the local authority had unlawfully not applied that policy in rejecting an application for a residence allowance.

R (on the application of G) v Southwark LBC [2008] EWCA Civ 877, Court of Appeal, Civil Division (Pill, Rix and Longmore LJJ): (Rix LJ dissenting) the local authority had been entitled to come to the decision that claimant, aged 17, was not entitled to be accommodated by the authority pursuant to s 20 of the Children Act 1989 because he required "help with accommodation" under s 17 of the 1989 Act and not "accommodation" under s 20. The House of Lords has granted permission to appeal.

R (KR) v SSWP [2008] EWHC 1881 (Admin)(Bean J): a community care grant could be made out of the social fund in respect of the cost of journeys to facilitate a child's change of residence from one parent to another, which began and ended at the child's school, when the school was not open (the cost did not relate to cost of "travelling expenses to and from school", which was excluded).

EM (Lebanon) v SSHD [2008] UKHL 64, House of Lords (Hope Bingham, Hale, Carswell, Brown): it would be incompatible with Article 8 of the Convention to remove the claimant and her son to Lebanon because the (marriage having broken down as the result of domestic violence) the father would automatically be entitled to custody of the son. The question was whether, on the particular facts of a foreign case, removal would so flagrantly violate her Article 8 rights as completely to deny or nullify those rights in the foreign country. That was a very hard test to satisfy, and a serious or discriminatory interference with the right protected would be insufficient. In all the circumstances of this case, on return to Lebanon, both the claimant and her son's rights to respect for their family life would not only be flagrantly violated but would also be completely denied and nullified. In no meaningful sense could occasional supervised visits by the claimant to her son at a place other than her home, even if ordered (and there was no guarantee that they would be ordered) be described as family life. The effect of return would be to destroy the family life of the claimant and her son.

R (on the application of RJM (FC) v Secretary of State for Work and Pensions [2008] UKHL 63, House of Lords (Hope, Rodger, Walker, Mance, Neuberger): a homeless person had a status sufficient to trigger Article 14; however legislation disentitling him to a disability premium was justified as the purpose was to encourage rough sleepers to become housed.

R (on the application of Collins) v Knowsley MBC [2008] EWHC 2551 (Admin), Michael Supperstone QC sitting as a DHCJ: the authority had been under a duty to provide accommodation for the claimant, pursuant to s 20 of the 1989 Act, as it had organised a placement for the claimant with L, and was therefore required to pay L the appropriate weekly fostering allowance.

R (Hillingdon LBC) v The Lord Chancellor [2008] EWHC 2683 (Admin), (Dyson LJ, Bennett and Pitchford JJ): the recent huge increase in fees for bringing care and placement proceedings was lawful because local authorities had no legitimate expectation that fees would not be increased. There had been adequate statutory consultation and the increase was not irrational.

Re E (a child)(AP)(Northern Ireland) [2008] UKHL 66, House of Lords (Hoffmann, Scott, Hale, Carswell, Brown): the House of Lords dismissed the claimant's appeal that the police response to a Protestant protest along the route towards her daughter's school had breached her and her daughter's rights under arts 3 and 14 of the European Convention on Human Rights. The obligation placed upon authorities under Article 3 was no different in kind from that under art 2 to do all that could reasonably be expected of them to avoid a breach of art 3 once they had or should have had knowledge of the existence of the risk.

R (on the application of C) v Birmingham CC [2008] All ER (D) 171 (Nov), (Charles J): as a matter of law, a local housing authority had to have regard not only to the terms of policy DP 5/96, but also to the reasons underlying that policy, in deciding whether to provide accommodation support (on applications made pursuant to sections 17 and 20 of the Children Act 1989) to persons not lawfully resident in the United Kingdom. There had to be a measure of consistency between different local authorities in respect their decision-making; particularly, on the question of whether art 8 of the Convention would be breached, for instance, as a result of a decision not to provide accommodation support to children who had been resident in the UK for seven years but whose immigration status had not yet been determined.

RK and another v United Kingdom, 30 September 2008, European Court of Human Rights (Judges Garlicki, Bratza, Bonello, Mijovic, Bjorgvinsson, Hirvela, Bianku, Early): the subjection of the applicants' child to care proceedings had not amounted to a violation of the applicants' right to respect for family life as guaranteed by art 8 of the European Convention on Human Rights. However, the lack of an effective remedy for their complaints about shortcomings in the process amounted to a violation of art 13 of the Convention. They were awarded €10,000 in respect of non-pecuniary damage.

R (on the application of C) v Secretary of State for Justice [2008] EWCA Civ 882, Court of Appeal (Buxton, Tuckey and Keene LJJ): the Court of Appeal quashed the Secure Training Centre (Amendment) Rules 2007, SI 2007/1709, in circumstances where the rules had been enacted in breach of the statutory requirement to do a Race Equality Impact Assessment before the enactment and where, in any event, the rules were in breach of arts 3 and 8 of the European Convention on Human Rights.

JH v East Sussex CC [2008] EWHC 2418 (Admin) (HHJ Inglis sitting as a DHCJ): in a case which had been brought pursuant to s 11 of the Tribunals and Inquiries Act 1992, the Administrative Court decided that the Special Educational Needs and Disability Tribunal's determination, in respect of an appeal concerning the choice of school for a child with Prader Willi Syndrome, was not inadequately reasoned or unlawful.

R (RW) v Harrow LBC Independent Appeal Panel [2008] EWHC 2433 (Admin) (HHJ Inglis sitting as a DHCJ): the IAP had not issued a decision which offended principles of natural justice. The earlier decision to exclude a pupil from a school, as confirmed by the governors of that school, might have been infected with certain procedural flaws, but by the time the panel had come to consider the matter any such flaws had been remedied.

TM v Hounslow LBC [2008] EWHC 2434 (Admin), (HHJ Inglis sitting as a DHCJ): the SENDIST's decision to uphold the local education authority's choice of school, in respect of a child with Autistic Spectrum Disorder, was not in error on the basis that section 319 of the Education Act 1996 had been incorrectly interpreted and applied. The tribunal had correctly identified that the word 'inappropriate' in section 319 of the 1996 Act did not involve drawing a balance between all of the attributes of home and school provision, but that its aim was to direct a child into school if a school could, in fact, meet a child's educational needs as identified under Pt 3 of a SSEN. In this case, there was nothing which could warrant disturbing the tribunal's conclusion that it was appropriate for M to move from being educated at home to school and, more specifically, that LB school could best meet M's educational needs.

Islington LBC v SENDIST [2008] All ER (D) 120 (Aug), 20 August 2008, (Judge Waksman QC sitting as a DHCJ): where the SENDIST had ordered the local education authority to make a special educational needs statement in respect of the child who had learning difficulties, it had not applied the relevant test under section 324 of the Education Act 1996 or the test under paragraph 8.2 of the Special Educational Needs Code of Practice and therefore its decision could not stand.

R (Arratoon) v Office of the Independent Adjudicator [2008] All ER (D) 160 (Nov), 17 November 2008 (David Holgate QC sitting as a DHCJ): the OIA had not arrived at a perverse decision in allowing in part the claimant's application for a review of the way in which the relevant Higher Education Institution (HEI) Academic Appeals Committee had handled his appeal against a decision of the HEI that he had failed, inter alia, one of his work placements.

R (Governing Body of Drayton Manor High School) v Office of the Schools Adjudicator [2008] All ER (D) 270 (Oct), (HHJ Stewart QC sitting as a DHCJ): the schools adjudicator had erred in resolving to uphold the local education authority's objection to the claimant governors' ratification of the 2009-2010 academic year admissions policy for a secondary school in west London.

D v Bedfordshire CC [2008] EWHC 2664 (Admin), Sir George Newman: the appeal by parents of a child, against the decision of the SENDIST to uphold the local authority's decision not to provide transport for the child to attend a theatrical production class after school, was allowed, because the tribunal had been wrong to determine that the provision of transport for those purposes amounted to 'auxiliary aids or services' pursuant to s 28G(3)(b) of the Disability Discrimination Act 1995.

Jeleniewicz v DWP [2008] EWCA Civ 1163, Court of Appeal (Mummery, Arden LJJ and Lewison J): the social security commissioner had lawfully concluded that a student's child (looked after by his former partner) was not his "dependent" for the purposes of the student's directive (EC 93/96) and that it was not disproportionate to refuse state benefits to the child and mother.

Health

Bassilious v GMC [2008] EWHC 2857 (Admin) (Sullivan J): none of the appellant's criticisms of the respondent's Fitness to Practise Panel were well-founded. The panel had been correct, on the evidence, to find the appellant guilty of serious professional misconduct, and to thereafter impose conditions on his registration. The Administrative Court had to give appropriate weight to two factors: (a) the fact that the panel would have had the advantage of hearing oral evidence; and (b) the panel's own professional expertise.

R (Thompson) v Professional Conduct Committee of the General Chiropractic Council [2008] EWHC 2499 (Admin) (Lloyd Jones J): where the Professional Conduct Committee of the General Chiropractic Council (the PCC) had fixed a hearing for a date upon which one of the claimant's expert witnesses was unavailable, they had acted unfairly since they had been aware at the time of taking the decision of the witness's availability, his evidence was central to the claimant's defence and only a short adjournment would be required to make his attendance possible. The matter was remitted back to the PCC so that a suitable date for the hearing could be identified.

Compton v GMC [2008] All ER (D) 103 (Nov) (Pitchford J): when considering a doctor's fitness to practice when that doctor was not present at proceedings, the legal assistant had a duty to inform the panel of the need for vigilance and to identify the points which might be of assistance to his case, but not to summarise the evidence. In this case, the panel had done everything reasonable to ensure that anything which might have helped the claimant had not been overlooked. The claimant could not therefore have any reasonable complaint as to the process or the result of the hearing and the decision of the panel would stand.

R (Green) v South West Strategic Health Authority [2008] EWHC 2576 (Admin) (Wyn Williams J): the authority's published eligibility criteria and supplementary guidance relating to claimants' entitlement to a package of continuing National Health Service care, when properly interpreted, was not unlawful. Any decision-maker seeking to apply the authority's published criteria would know that he or she had to apply the Primary Healthcare Needs Test. The eligibility criteria relied on by the authority had to be read as a whole and applied in the light of the supplementary guidance. The supplementary guidance stated, in terms, that the ultimate objective for the decision-maker was to ensure that those with a primary healthcare need were fully funded by the NHS. Further, the guidance clearly and explicitly set out the content of the Primary Healthcare Needs Test. The decision-maker had to consider the whole of the care needs of the individual; in effect asking himself the question of whether the primary need was a health need.
The authority's published criteria, when properly interpreted, was not unlawful.

Ofoegbu v Nursing and Midwifery Council [2008] EWHC 1822 (Admin) (Hodge J): where the appellant nurse appealed against the sanction of removal from the nursing register, following findings of misconduct, including aggression towards patients, in all the circumstances it could not be said that the defendant's professional conduct committee had erred in imposing that sanction. The nurse submitted that the proper sanction had been a caution. She contended, inter alia, that the committee had limited its discretion by saying that it had 'no alternative'. Moreover, she submitted that the sanction was wrong in the light of the previous interim suspension order which had been lifted; and that the committee had failed to have proper regard to that issue. Whilst the appeal was by way of a rehearing, it was well established that it was the task of the professional conduct committee in such health professional cases was to impose a sanction where misconduct was found. It was it to decide what sanctions were appropriate for the protection of the public and for the preservation of public confidence in their profession. The appeal should not be treated as a re-sentencing exercise. It was not enough for the appellate court merely to disagree with any decision made by the conduct committee. Regard had to be had to the special expertise of the tribunal. It had greater knowledge than the court of the proper standards that applied in such cases and the need for public protection. The committee in the instant case had comprised experienced nursing officers and a lay member to ensure that the issues of the public interest, which might be wider than those of the nursing profession, were also had regard to. The committee had been fully aware of the powers it had under the sanctions available to it. It had had much more information before it and could entirely properly reach the conclusion it had, irrespective of the fact that there had been a lifting of the previous suspension. The committee had not erred in giving weight to the aggression exhibited by the appellant and her falling asleep whilst on duty. In all the circumstances, having regard to the committee's particular professional expertise and knowledge of the nursing profession, their interest to protect the public and the issues which had been found against the appellant, it could not be said that it had erred in imposing the sanction it had.

R (Atwood) v Health Service Commissioner [2008] EWHC 2315 (Admin) (Burnett J): section 3(1) of the Health Service Commissioners Act 1993 did not dictate that the Bolam test should be applied by the Health Service Commissioner (the Ombudsman) to questions of clinical negligence; however, given that the Ombudsman's own documents showed that, when considering whether to stigmatise a clinical judgment as 'unreasonable', she and her predecessor had stated that they would apply a test which was indistinguishable from that test, the investigating officer in this case had misdirected himself in applying a different standard in the case involving the claimant doctor.

R (Roberts) v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1934 Admin (Cranston J): a patient at a high-security psychiatric hospital who was suffering from mental illness was not entitled under the Data Protection Act 1998 to full disclosure by an NHS trust of a psychology report or disclosure only to his legal representatives. There were clear and compelling reasons based on cogent evidence to support the decision not to disclose, and no injustice had been caused as the patient had had a fair opportunity of presenting his own psychological evidence.

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