2012 09 Adult Care

Monday 1 October 2012

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Dordevic v Croatia (Application No. 41526/10, 24 July 2012), [2012] ECHR 1640: the failure of the Croatian state to prevent the persistent, serious harassment of and, ultimately, some physically violent treatment of, a mentally and physically severely disabled young man in his 30s, by pupils from a nearby school, over a period of about 2 ½ years, which the authorities were aware of, was a breach of the young man’s rights under article 3 ECHR, and a breach of his mother’s rights under article 8, - notwithstanding that some of the pupils were under the age of criminal responsibility and so could not be prosecuted, that some of the children had been interviewed, the headmaster had written to their parents and the police had offered to patrol the area more frequently. There had been significant adverse health effects on the young man, domestic remedies had not been adequate and there had not been a sustained and systematic approach by the state, for example, involving social workers or experts who could have worked with the children concerned. Click here for the judgment.

R (Davis) v West Sussex CC [2012] EWHC 2152 QB (HHJ Mackie QC): the court quashed determinations by the local authority, at a case conference, and recommendations made at a subsequent review, that there had been abuse of care home residents, that remedial actions were required and that 3 members of staff should be referred to their professional bodies. The decisions were public law decisions amenable to judicial review (notwithstanding the potential availability of contractual remedies). Despite the primary importance of safeguarding the welfare of residents, the decisions had been reached in a blatantly procedurally unfair manner: the care home owner was given an “absurdly short time” to consider the report for the case conference and, at the case conference, which lasted 8 hours, “her treatment …. was deplorable”. Following that, a default notice under the contract had been served “within a ludicrously short timescale”, whilst the subsequent review ignored important representations by the care home owner, failed to consider criticisms made by review officers and had a number of other “extraordinary aspects”, including a failure to notify the care home owner of a further case conference. Click here for the judgment.

R (South West Care Homes Ltd) v Devon CC [2012] EWHC 1867 Admin (Singh J): the council had taken into account the actual cost of providing care homes locally by commissioning an accountancy firm to construct a model that calculated the cost of care in Devon, by analysing financial information and costs pressures generally, by listening to the concerns of care providers and by considering the cost of running council care homes and the amounts paid by other regional authorities. Further, on the facts, the council had had regard to the potential indirect impact on the human rights of residents. However, the council had failed to consult the care home providers about its proposal not to increase care home fees, in breach of the legitimate expectation that it would do so, based on its past practice. Notwithstanding that, judicial review remedies being discretionary, only declaratory relief would be granted, and not a quashing order, to avoid detriment to good administration: because the claim had been issued at the end of the 3-month cut-off period (and had not been properly formulated until a considerable period after that); the financial year had ended and transactions including tax returns would have been completed on the basis of no increase in fees; any increased fees resulting from a quashing order would be a windfall for providers who had not challenged the decision and would have adverse consequences for residents paying the full cost of their care through the local authority, or relatives of those who had died, or council tax payers; and, whilst there had not been legally adequate consultation, the views of the care providers were in any event well-known to the council. Click here for the transcript.

R (C) v North Tyneside Council [2012] EWHC 2222 Admin (Hickinbottom J): in assessing how much to charge for home care services, a local authority is entitled to assume that, in the ordinary case, no specific allowance or disregard needs to be made in relation to housing costs for service users who live with their parents, other close relatives or informal carers, where the user has no legal obligation to a third party to pay mortgage, rent or council tax because an element of ESA covers such housing costs. The same is true a fortiori if the service user has income over basic ESA, for example, earned income. The proviso is that there may be exceptional circumstances, in relation to a specific service user, which may require the authority to consider an additional allowance or disregard, for example, if the service user had additional disability-related housing needs. However, the council’s policy in this case was irrational, insofar as it provided for the making of an allowance against the service user’s income, in respect of a non-dependant deduction, when the service user was living with parents or close relatives who were themselves in receipt of housing and council tax benefit, but not otherwise – the effect on the service user was the same in both cases. Click here for the judgment.

R (D & S) v Manchester CC [2012] EWHC 17 Admin (Ryder J): in setting its budget strategy, the council had complied with its duty under section 49A of the Disability Discrimination Act 1995 because, although it had not completed an EIA (i) the budget was constructed following a consultation that led to a framework aimed at safeguarding and protecting the most vulnerable residents of the city whilst increasing independence where appropriate, (ii) the budget was framed on the basis that the council would continue to meet its statutory obligations, (iii) it was recognised that further consultation, and EIA would be required, in relation to specific measures consequential upon the overall budget strategy, (iv) a substantial contingency fund had been set aside, so that lawful corporate decisions could still be made, for example, if it became apparent that budget limits would have to be exceeded. The test as to whether a council had had “due regard” was the Wednesbury test (cf. R (Aaron Hunt) v North Somerset Council [2012] EWHC 1928 Admin). The post-budget consultation was, on the facts, lawful. In any event, the court would have refused any relief in relation to the budget setting, even if unlawfulness had been established, on the ground of delay, given that, as a matter of law, the court would have been required to quash the entire budget calculation, the setting of the council tax rate, whilst there was no realistic prospect that the council would in fact set a higher council tax rate (cf. R (Aaron Hunt) v North Somerset Council [2012] EWHC 1928 Admin). Click here for the judgment.

R (Aaron Hunt) v North Somerset Council [2012] EWHC 1928 Admin (Wyn Williams J): the council’s budget for 2012/13 included a reduction of financial provision for youth services. That was the exercise of a function falling within section 507B of the Education Act 1996. However, for the purposes of section 507B, the council had “taken steps” to ascertain the views of “qualifying young persons in the authority’s area”, by widely circulating its budgetary proposals to households, persons and organisations in the council area, which would have included qualifying young persons and their representatives, albeit that the council undertook no measures targeted at specific young persons. Further, on the facts, there had been due regard to the public sector equality duty, at section 149 of the Equality Act 2010, albeit that councillors had been referred to, rather than provided with copies of, the relevant EIAs, and albeit that there had not been an analysis of the potential impact on every protected characteristic. It was a matter for the judgment of the court, however, whether a local authority had had “due regard” to the matters specified in section 149 and the issue was not to be judged on the Wednesbury basis (cf. R (D & S) v Manchester CC [2012] EWHC 17 Admin). The question of relief did not arise. However, the court expressed the view that, if the claimant had been able to establish that the element of the budget dealing with youth services had been reached unlawfully, the court would have had jurisdiction to grant an appropriate remedy (including a quashing order) in relation to just that element of the budget i.e. the court would not have been required to quash the whole budget, by virtue of section 66 of the Local Government Finance Act 1992, or the Council Tax setting, by virtue of section 30 (cf. R (D & S) v Manchester CC [2012] EWHC 17 Admin). Click here for the judgment.

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