Families of disabled children win judicial review of council’s decision to cut short breaks services
Created on 25 July 2016
The families of two children with severe learning disabilities have been successful in a judicial review into local authority cuts to short breaks services, which they said would leave their children socially isolated.
The families of a 14-year-old boy and 8-year-old girl from Newbury, known only as DAT and BNM, instructed public law experts Irwin Mitchell to take on West Berkshire Council over the cuts, which will see the budget for short breaks services provided by voluntary sector organisations slashed by 48%. The decision was made at a meeting of West Berkshire Council on March 1 this year and reaffirmed at another meeting on May 31.
Irwin Mitchell applied to the High Court for a judicial review on the basis that the £215,600 funding reduction is unlawful as it breaches a number of legal duties, including those arising out of the Children Act 1989 and the Equality Act 2010.
The High Court declared today [July 22] that West Berkshire Council did not properly consider its legal duties before deciding to make the cuts, and that the subsequent decision was merely to “rubber stamp” the first decision without being able to cure the original flaws.
The hearing took place on June 22 and 23 at the Royal Courts of Justice in London with the judge siding with the families, forcing the council to rethink its plans.
DAT, who has autism and a rare neurodevelopmental disorder called William’s syndrome, requires around the clock care. He cannot wash or dress himself, get food or drink for himself nor be left unsupervised.
The teenager’s parents, who have three other children, rely on “life-saving” short breaks services to enable their son not only to have meaningful social experiences, but to give them a break to spend quality time with his siblings and each other.
“We’re obviously thrilled that the judgment has gone in our favour,” said DAT’s mother. “These services offer DAT support that we cannot provide him ourselves, because they allow him to socialise with his peers. Without short breaks he’ll be completely socially isolated. They really are life-saving, not just for him but for the family as a whole.”
Previously, DAT benefitted from a care package funded by West Berkshire Council including short breaks and weekend clubs from West Berkshire Mencap, Crossroads Care Oxfordshire, Castle Gate and Guide Post. This package enabled him to visit the Mencap centre to play games with other disabled children, go swimming, on walks, and day trips to the zoo. It also paid for him to attend holiday clubs during school breaks, giving his parents and siblings a break from their 24-hour caring schedule.
BNM has autism, ADHD, epilepsy and cortical dysplasia, a brain malformation in the part of the brain responsible for emotional and impulse control. BNM’s mother says that as a result of her conditions BNM is incredibly volatile and can be violent. She requires constant attention by her family and carers.
The girl’s parents rely on short breaks services to give BNM the opportunity to play with children her own age and so they can spend quality time with their 12-year-old son.
“These services are what keep the family together,” said BNM’s mother. “Without the same level of support by West Berkshire Mencap this summer, BNM won’t get the care that is best to meet her very complex needs. Mencap provides an incredible service. There is nothing else like it out there for families like ours. It is a lifeline for us and for our daughter.
“We believed the council had not taken into account its legal obligations and the profound consequences of the cuts before it took its decision. Now we feel our legal challenge has been justified, and everyone who relies heavily on these precious services will be relieved and delighted.”
Previously, BNM benefitted from a care package funded by West Berkshire Council including an after school club and holiday play schemes from West Berkshire Mencap. The short breaks give BNM the structure she needs outside of school and gives the family peace of mind that she is having fun with other children in a safe space with specialist facilities and properly trained staff.
West Berkshire Council cut the funding for disabled children’s respite services from £415,600 in 2015/16 to just £200,000 for 2016/17. As a result, DAT and BNM will no longer be able to access the same level of services as they did before.
The cuts meant that Crossroads Care Oxfordshire’s services would reduce by about 40% and West Berkshire Mencap would provide 1,200 fewer hours of support over summer holidays compared with last year.
Alice Cullingworth, expert public law lawyer at Irwin Mitchell, representing DAT and BNM, said: “The High Court has decided that the council’s cuts were unlawful and they will now have to go back to the drawing board and take a new decision – this time complying with all their legal duties.
“With the summer holidays on the horizon many families were very concerned about the impact the cuts would have. They are now hopeful that the council will think again and confirm that these services will continue to be funded.”
Before starting court proceedings Irwin Mitchell invited the council to reverse its decision and to think again after having assessed the sufficiency of vital short breaks for families in West Berkshire.
The firm also asked that it considered applying a modest amount from its reserves to prevent cutting short breaks services. After permission for the judicial review was granted, lawyers wrote to the council once more to ask it to think again and avoid incurring any more legal costs defending the claim.
“It’s therefore disappointing that this case has proceeded all the way to court but sadly we were left with no choice,” added Cullingworth. “The judgment means that the council will have to reconsider its decision to fund these highly valued services, which provide many families with critical support.”
The High Court ruled that the council’s decision to cut the budget on March 1 was unlawful because members were essentially misdirected about their legal obligations under the Equality Act 2010.
The presiding judge, Mrs Justice Laing, said the decision was also unlawful because members did not consider other relevant statutory duties before they decided to proceed with the cuts. She said there was “no trace” of consideration by members of West Berkshire Council of any of these other legal duties, which are “mandatory relevant considerations”.
Mrs Justice Laing also ruled that the second decision the council took on May 31 to “re-affirm” the March 1 decision was legally flawed because “the way in which the issue was presented to members on May 31 gave a clear impression that they were expected to apply a rubber stamp to the decision of March 1, 2016, and a clear impression that they could not decide to rescind it”. The judge stated that there was “a very clear appearance of predetermination” and the second decision could not therefore “cure the flaws” of the first decision on March 1.
Both decisions have therefore been quashed, which means that West Berkshire Council will have to take a new decision about funding for these services, and one that complies with all its legal duties.
Leila Ferguson of West Berkshire Mencap, who supported the claim and provided evidence about the impact of the cuts, said: “We are delighted that the High Court has ruled that the cuts in short break funding were unlawful. This is fantastic news for all the children and families that we support.”
Rossanna Trudgian, head of campaigns at Mencap said: “Today’s judgement should be a reminder of the damaging effects cuts to local council funding from central government can have on the needs of disabled children, and that the support they are entitled to should be protected.
“Short breaks are a lifeline for many families who care 24 hours a day 7 days a week for their loved ones with a disability. The demands of caring for a disabled child, sometimes 24/7, can push many families into moments of crisis, with 8 out of 10 families who care for a child with a learning disability reporting to us that they have reached, or have come close to reaching, breaking point due to a lack of short breaks.
“Despite this a Mencap report in 2013 revealed more than half of council have cut spending on short breaks for families, and the trend appears to no sign of reversing. This High Court judgement should be a warning for the Government to address the crisis in local councils funding, in order to protect the support disabled people and their families rely on so desperately.”
Poverty and disabled people
Created on 12 August 2015
Does the current way of producing poverty figures underestimates by at least half the number of disabled people and their families who live in poverty and possible by many more?
Currently Scottish Government figures say that 320,000 people who have a disabled person in their household are living in relative poverty. The real figure may be more than 600,000 with many of them having a learning disability.
Current figures understand poverty by setting a poverty line at 60% of average income for a two person family, then adjusting it for different types of family sizes such as single parents with two children or a single person. To get the number of disabled people in poverty, you simply count the number of disabled people in households below this line.
It seem to us that these figures are a serious underestimation because they fail to take account of the extra costs associated with disability. From additional laundry to special diets and extra travel costs, disabled people have to spend more to live the same type of lives as people without a disability. Further for those who rely on social care services, high charges make it worse.
A 2014 report for the Joseph Rowntree Foundation found a way of adjusting for this. They excluded “disability costs” benefits such as Disability Living Allowance and Personal Independence Payment from household income, as these are given to meet the extra costs of disability. Their research suggested the number of disabled people in poverty in England was double the official amount, about 2 million in total.
As a result disability could be one of the key indicators of poverty in Scotland and should be given the same attention in anti poverty work as child and pensioner poverty.
Who pays for your care?
Created on 2 August 2015
Supreme Court overturns key Court of Appeal decision on ordinary residence
The Supreme Court has rejected a Court of Appeal ruling on who has financial responsibility for the care of an adult with physical and learning disabilities, instead ruling that the local authority initially responsible for meeting his needs as a child should be responsible for his care after the age of 18.
The ruling was made despite the subject, PH, having been placed in foster care outside the authority’s area from the age of five, having lived out-county all of his adult life and his natural parents having also moved away from the local authority area of his birth.
PH has physical and learning disabilities and there is no dispute that he is entitled to receive care costing around £80,000 per annum. He was born in Wiltshire in 1986, but was placed by Wiltshire County Council with foster parents in the South Gloucestershire Council area from 1991. Since he was 17, PH has lived in two care homes in Somerset. His natural parents moved to Cornwall from Wiltshire after his foster placement was made and PH regularly visited them there for holidays.
The dispute over who should pay for his care was initially referred by the councils concerned – Cornwall, Wiltshire, Somerset and South Gloucestershire – to the Health Secretary to determine “the proper approach to the determination of a person’s ‘ordinary residence’ within the meaning, and for the purposes, of Part III of the National Assistance Act 1948, where that person lacks capacity to decide where to live.”
Wiltshire Council arranged PH’s foster placement under the Children Act 1989. Under Section 105(6)(c) of the Children Act 1989, any period in which the child lives in accommodation provided by or on behalf of the local authority is disregarded in determining a child’s ordinary residence for the purposes of the 1989 Act.
At the time PH turned 18, the National Assistance Act 1948 section 21 obliged local authorities to arrange accommodation for people over eighteen with disabilities who need care and attention not otherwise available to them (the application of the 1948 Act has since been restricted to Wales).
According to section 24(5) of the Act, somebody provided with accommodation under the Act is considered to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before that accommodation was provided. Section 105(6)(c) and section 24(5) have been referred to as “deeming” or “disregard” provisions.
The minister concluded that Cornwall was responsible for the cost of PH’s care, drawing on two principal authorities: R v Barnet LBC, ex p Shah  AC 309, and R v Waltham Forest, Ex p Vale (unreported, 11 February 1985). In Shah, the House of Lords held that “ordinary residence” connotes an abode voluntarily adopted for settled purposes. In Vale, the High Court held that an adult woman whose disabilities meant she was incapable of choosing where to live had her ordinary residence with her parents, because that was her “base”.
This prompted the Cornwall Council to challenge that determination by way of judicial review in the High Court before Mr Justice Beatson (as he then was) but were unsuccessful.
Cornwall then applied to the Court of Appeal, which allowed the appeal and declared South Gloucestershire to be the ordinary place of residence at the relevant time. The Court of Appeal also ruled that the deeming provisions did not apply to PH since each applied only for the purposes of their own Act.
The Health Secretary appealed this decision to the Supreme Court. The parties to the proceedings are the Health Secretary (the appellant), Cornwall Council (the respondent), Wiltshire Council, South Gloucestershire Council and Somerset County Council (the interveners).
In R (on the application of Cornwall Council) (Respondent) v Secretary of State for Health (Appellant) and R (on the application of Cornwall Council) (Respondent) v Somerset County Council (Appellant)  UKSC 46, the Supreme Court allowed the appeals by a majority of 4-1, determining PH’s ordinary residence at the relevant time to be Wiltshire. Lord Carnwath gave the judgment with which Lady Hale, Lord Hughes and Lord Toulson agreed. Lord Wilson gave a dissenting judgment.
In determining that Wiltshire Council was responsible for the cost of PH’s care, the Supreme Court said that the Secretary of State’s reasons for selecting Cornwall, which started not from assessment of the duration and quality of PH’s actual residence but from an attempt to ascertain his “base” by reference to his family relationships, cannot be supported. PH’s brief periods of staying with his parents at holiday times could not amount to ordinary residence, it ruled.
The judgment said that although the attribution of responsibility to South Gloucestershire may fit the language of the statute, it runs directly counter to the statute’s policy. The only connection with that county was PH’s historic placement under a statute, the Children Act 1989, which specifically excluded the placement from consideration as ordinary residence for the purposes of the 1989 Act.
It continued: “The policy in both the 1989 and 1948 Acts is that ordinary residence of a person provided with accommodation should not be affected, for the purposes of an authority’s responsibilities, by the location of that person’s placement. The purpose of the deeming provisions in both Acts is that an authority should not be able to export its responsibility for providing accommodation by “exporting” the person who is in need of it. It would be undesirable if, despite the similarity and purpose of these provisions, there is a hiatus in the legislation. It could also have adverse consequences on local authorities’ willingness to receive children who need specialist care from another local authority,”
Lord Carnwath noted that in construing section 24 of the 1948 Act, the statutory context is critical. The relevant provisions in each Act have the same function, namely allocating fiscal and administrative responsibility between local authorities. PH was at the relevant time living somewhere he had been placed by a local authority under the 1989 Act.
“It would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are found in the 1989 Act. One of those characteristics is that the foster placement did not affect his ordinary residence under the 1989 Act’s statutory scheme. It follows that PH’s placement in South Gloucestershire by Wiltshire is not to be regarded as changing his ordinary residence. Until he turned eighteen, for fiscal and administrative purposes his ordinary residence continued to be in Wiltshire, regardless of where they determined that he should live.
Therefore the appeal is allowed and in the declaration of the Court of Appeal references to South Gloucestershire are substituted for references to Wiltshire.”
In the dissenting judgement. Lord Wilson argued that at the relevant date PH and his family had all moved away from Wiltshire and that South Gloucestershire “is the result that the law clearly compels” on the established meaning of “ordinary residence”, even if public policy militates against it.
He said: “Though he did not adopt it voluntarily, PH was happy and settled there. Parliament has not chosen to widen the provisions in the 1948 Act so as to disregard an adult’s previous placement as a minor under the 1989 Act.
“The majority’s analysis that the “legal characteristics” of a minor’s residence under the 1989 Act make it irrelevant to determining ordinary residence under section 24 of the 1948 Act makes the statutory disregards in section 105(6) of the 1989 Act and section 24(5) of the 1948 Act redundant.”
Copies of the judgements can be found at the following links:
In R (on the application of Cornwall Council) (Respondent) v Secretary of State for Health (Appellant)  UKSC 46
R (on the application of Cornwall Council) (Respondent) v Somerset County Council (Appellant)  UKSC 46
‘A Return To The Dark Ages’?
Created on 16 December 2014
Glasgow City Council Social Work Services are currently tendering for a new 20 bed Care Home for people with learning disabilities.
In Scotland we like to think of ourselves as being more forward thinking than the rest of the UK. But in November, shocked that more people were entering institutional care than leaving it in England, Norman Lamb MP, the UK Minster for Care admitted on the radio that the problem is that local authority provision for people living in independently was falling behind. And he promised action to deal with it. The money was there, he insisted.
ITS NOT THE SAME IN SCOTLAND
Glasgow City Council is seeking “a discrete unit dedicated to the care and accommodation of 20 adults with learning disabilities, staffed on a 24 hour basis, within the geographical boundary of Glasgow. It will comprise living spaces including dining areas, communal areas, and individual bedrooms. It will also have access to outside garden space for residents. The unit will have its own identity, and at very least a door separating the unit from other resources.
“The unit will be staffed 24 hours per day and able to meet the needs of up to 20 individuals over the age of 18 yearswith Learning Disabilities whose needs are to a level of complexity that cannot be met within a mainstream elderly care home environment.”
The service has to be fully up and running by 7th January 2015.
We are concerned because
- Large institutional settings disempower people with learning disabilities leaving them more vulnerable to abuse and neglect such as took place in Winterbourne.
- The creation of such large services can allow staff sub cultures to develop that devalue people with learning disabilities.
- Opening such a service in just weeks after the award of contract runs the risk of unexpected problems such as making sure each individual has a proper personalised care plan .
- This service may end up replicating the problems in care home services already used by the City Council such as Collisdene Care Centre which has had a moratorium on placements for over a year because of poor performance.
Developing a 20 bed care home is not an alternative way of looking after people with learning disabilities in the community. It is a return to the old days of large segregated services that have the smell of Lennox Castle and other large hospital based services.
Throughout Scotland there has been a shift but in Glasgow there has been a real move away from care homes. In fact, over the period the number of care homes in Glasgow has fallen by 20%. Care homes have been closing, rather than opening.
Not only have care homes been closing, they have been getting smaller. In 2013 there were 233 care homes in Scotland for 1,588 long term residents with learning disabilities making the average size of care home 7 places each – one third of the proposed new service.
Our Glasgow Stronger Together Group have talked about this development and written to members of Glasgow’s Independent Living Strategy asking for their help.
Ewan from the group put it well when he said , “ it is like going back to the Dark Ages of Lennox Castle.” Although no Glasgow Council Committee has so far been asked to approve this new policy, the Executive Committee will be likely to be asked to approve the award of any future tender. Please get in touch with your councillor or MSP and ask them to stop this backward step.
BME People Lose Out Across Scotland
Created 25 July 2014
People from Black and Minority Ethnic (BME) communities are less likely to get a service than people from a White Scottish background.
While the census shows that that BME people make up 5.2% of the Scottish population, the national database on learning disability, ESAY show only 1.24% of people with learning disabilities are from a BME background.
There are some wide regional variations.
Many BME communities are well established in Scotland and are likely to have a similar incidence of learning disability in the population. As a result there has been a lack of clarity about what is going on. Fortunately a recent report from the Action Group on their work with people with learning disabilities has helped to provide some explanations.
BEMAS Transitions has worked with 50 young adults and their families since 2011. This is one of the largest projects of its kind in Scotland. The project was to help young people to set goals and to try and make them happen. In so doing, they would learn more about the barriers that people from BME communities face.
What they found makes worrying reading. Among the key barriers the project found were:
Lack of Access to Information and Support – Almost all disabled people and their families have a problem knowing what services and supports are available. This is made worse for people from BME communities. Some have English as a second language. Others have come from another country with very different social infrastructure systems and different terminology. Previous experiences of discrimination when using other services has made others fearful of dealing with a new organisation.
Lack of Access to Interpretation – Failure to offer interpretation was identified by many families who used the transitions service. Not all professionals are aware of their duty to offer and provide interpretation services. Most families were not aware that they had a right to ask statutory services to provide an interpreter. Even some of those that did, didn’t want to ask because they did not want to ‘cause a fuss’ or be a burden to services.
Lack of equality and diversity training – Some social work staff still make assumptions about the support that families will want, based on pre-conceived ideas about what is suitable within certain cultures. In one case where a BME family asked for respite services for a young adult with learning disabilities, the social worker said ‘they won’t want respite – it’s against their culture’. In other cases staff’s fear of behaving inappropriately led to a delay in any action being taken regarding a vulnerable adult.
These are all problems that can be tackled. The BEMAS Transitions project is an example of how good practice can help improve services.
But there is more that local authorities need to do to make sure that there is adequate interpretation available for people who and good equality training for staff.
Good commissioning of support services by local authorities should ensure that the needs of people from BME communities are taken account of.
Its All Over In tendering for care
Created on 13 December 2013
The Scottish Government has just announced plans to exempt all care and support arrangements from the requirement to advertise and competition. This will come in an amendment to a new bill and will not be law for some time yet, probably later in 2014 but public authorities should see this proposal as the direction of travel and abandon plans to tender care services that that they are currently considering.
Nicola Sturgeon made the announcement to the Infrastructure and Capital Investment Committee of the Scottish Parliament as part of its scrutiny of the Procurement Reform Bill at Stage 1 on the 11th of December:
“Having listened to the evidence, it is our intention to bring forward an amendment to the Bill at Stage 2 which will exempt health and social care contracts from the provisions in the Bill which relate to advertising and competition, and I hope that will go some way to addressing the concerns that have been raised…where an authority does choose to hold a competition for these kinds of services, it is important that some provisions in the Bill will still apply.” This will particularly exempt health and social care from the “mandating of that competition”
In the committee MSPs spoke about the “merry-go-round” of care services that puts a lot of pressure on the third sector. They were worried that “ tendering for care services was being driven by cost rather than quality, which is driving down pay and conditions for workers and causing a high staff turnover rate”
Many of us share these worries and there has been much campaigning and lobbying over the last 5 years by Learning Disability Alliance Scotland, our friends at CCPS and others. We fought a big campaign against tendering in Edinburgh and supported challenges to care tendering in Ayrshire and Lanarkshire. It’s really good news that in the future that authorities will have more discretion as to whether or not they put contracts out to tender (or, more likely, re-tender); and less discretion about how they conduct tenders, should they choose to use competition.
Now no one really needs to have to worry about their services being tendered out from under them. All local councillors need to know this and this will be especially so for those councillors in Edinburgh who are thinking about plans to tender supported employment services in 2014. Time to think again!
Living in the community – what is it really like for people who need a lot of help?
Created on 2 December 2013
The Mental Welfare Commission has just carried out a survey about what life was like for people with learning disabilities who need intensive support in the community. They found a lot of good things about it but there were a number of things that had to change because they were not good. You read the full report here. But down below we highlight the things that need to change.
They thought that some people needed better care and support, to help them live happy and independent lives, and make friends. All care and support staff should be well trained and managed. We found that some were not.
Services have to be the best they can be. Local authorities must keep looking at the care and support they give and make sure the service user’s rights are being protected.
Some people weren’t happy living together. It should be possible to move them to new homes with people they like, or let them have time away from the people they don’t get on well with.
A small number of support plans were out of date or did not meet all the needs of the service users. Some plans were quite good but more could be done to make them even better.
Service providers should help people to make friends. Some service providers were doing a good job of this, but most service users still said they didn’t have friends. Families should be involved more because they are very important in helping people to have social lives.
Support plans have to be looked at regularly by care managers to make sure the service user is getting the best out of them. Some people had their support plans looked at less often than once a year. We didn’t think that was good enough. A support plan should be looked at once every year, at least.
Some staff didn’t properly understand the law, and how it affects people who can’t say if they want medical treatment. A doctor has to say that a person isn’t able to make those decisions and make a plan for their medical treatment. This plan should be in the person’s file. Care providers need to understand this law better.
A small number of people weren’t allowed to leave the building where they stayed. Doors and windows were locked and had alarms. They only had limited access to things like mobile phones, cameras and the internet.
Some people had to be physically held down at times, one person had to be kept by themselves sometimes, and another person had to be watched by a CCTV camera. Most of these things were done according to the law and were well managed, but we had worries about how seven of the people were being treated.We think that if a person’s freedom has to be limited in this way, it should be part of their welfare guardianship order and approved by a court.