Practical and Legal Guidance for Assessing Capacity
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Read More17/06/2011
Legal intelligence for professionals in local government.
This update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in local government work, which have been published in the previous two weeks. Items are set out by subject, with a link to where the full document can be found on the internet.
If you have been forwarded this update by a colleague and would
like to receive it direct please email
Claire Booth.
All links are correct at the date of publication. The following
topics are covered in this update:
Adult Social Services
ADASS: Achieving closure - good practice in supporting older people during residential care closures: this good practice guide, published by the University of Birmingham Health Services Management Centre for ADASS, is aimed at helping local councils re-assess and re-settle older people in care homes when they close. It stresses the importance of not making rushed decisions, offers practical advice on managing closures and provides a series of helpful checklists. (10 June 2011)
R (KM (by his mother & litigation friend JM)) v
Cambridgeshire CC [2011] EWCA Civ 682 (CA): KM appealed against
the refusal of permission to apply for judicial review of the
Council's decision regarding its assessed direct payment for
KM's eligible needs. KM had serious physical and mental
disabilities and required significant support in his daily living.
The council assessed his needs and calculated his direct
payment at £84,678 p.a., using its Resource Allocation System
tool. KM complained that the Council had failed to carry out a
proper assessment and that the figure appeared arbitrary, so a
further report was prepared which estimated that the total
cost of supporting KM was £157,060 p.a., including the support KM
needed for maintaining and developing increased social, leisure and
therapeutic activities. The council agreed with the later
assessment of KM's needs but stated that it included unnecessary
services, and it decided to award him £84,678 p.a. KM applied for
judicial review, contending that the Council had failed to meet
their obligation to provide him with care, and that they had failed
to give adequate reasons for their decision. The judge refused the
application.
The court held, dismissing KM's appeal, that the
Council's assessment of KM's needs was adequate. While
there had to be a rational link between the needs and the assessed
direct payments, there did not need to be a finite absolute
mathematical link. Although the process by which the Council
had arrived at an intelligible explanation of the £84,678 was
tortuous, an intelligible explanation was eventually
given which properly showed how that sum had been reached, and
sufficiently demonstrated that direct payments of that assessed
amount would meet KM's assessed needs. (9 June 2011)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Children's Services
Ofsted: Inspection of local authority and voluntary adoption agencies: seeks views on proposals for a revised framework for the inspection of local authority and voluntary adoption agencies that assures the quality of services for children who are placed for adoption and for prospective adopters, and supports their continuing improvement so that children grow up in secure and loving families. Ofsted is proposing to involve children routinely and directly in the inspection of adoption services and continue where possible to meet with birth parents. It will report on how well agencies do in ensuring the timely and effective identification of children for whom adoption is the right option and the approval and placement of children with adoptive families, helping make sure the process is as smooth and quick as possible for all involved. The consultation closes on 31 August 2011. (7 June 2011)Ofsted: Inspection of local authority fostering services and independent fostering agencies: seeks views on proposals for a revised framework for the inspection of local authority fostering services and independent fostering agencies that assures the quality of services for children and young people who are placed with foster carers, and supports their continuing improvement. The proposals include significantly reducing the amount of notice given to inspections from six weeks to 10 working days. Inspection will continue to make sure that fostering agencies comply with regulatory requirements but it will have an increased focus on the quality of services and the difference these make to children’s lives in supporting them to grow up in secure and loving families. The consultation closes on 31 August 2011. (7 June 2011)
Ofsted: Raising standards, improving lives - The Office for Standards in Education, Children’s Services and Skills strategic plan 2011–2015: this draft plan builds on Ofsted's work to deliver its Strategic Plan 2007-10. It focuses on what it needs to do over the next four years to continue to raise standards and improve lives. Comments on the draft plan are welcomed; the final version will be published in the autumn. (10 June 2011)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
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Community Engagement DEFRA: The natural choice - Securing the value of nature: this White Paper on the natural environment outlines the Government’s vision for the natural environment over the next 50 years. It aims to improve the quality of the natural environment across England, halt the decline in habitats and species, and strengthen the connection between people and nature. The White Paper recognises that success in protecting and improving the natural environment will depend on action taken at local level. It includes proposals for a new Green Areas Designation that will enable communities to protect green spaces that have significant importance to their local communities, as part of local neighbourhood plans. The power will be introduced by April 2012. (7 June 2011)DEFRA has also published an information sheet on What the Natural Environment White Paper means for local authorities, together with information on local authority environment trailblazers - examples of initiatives where local councils and others have worked innovatively to produce better outcomes for their local people and places.
DCLG: Circular 06/04 Compulsory purchase and the Crichel Down Rules – New Appendix KA on exercise of compulsory purchase powers at the request of the community: the Planning Minister has issued revised guidance on compulsory purchase to local authorities that urges them to give greater attention to applications from voluntary and community groups who know their area and often have innovative ideas to make the best of local assets. He calls on local authorities to take seriously all viable requests from voluntary and community groups put to them for the compulsory purchase of a threatened community asset. This Circular has been reissued with an additional Appendix KA added to the memorandum, relating specifically to requests from voluntary and community organisations and other third parties. (9 June 2011)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Delivery of Services
All Party Parliamentary Group on Employee Ownership: Sharing ownership - The role of employee ownership in public service delivery: this report follows an inquiry into the Government's commitment to co-ownership in the public sector, which sought to identify policy challenges and practical solutions to ensure employee ownership can be both meaningful and successful for public service workers. It confirms that the benefits of employee-led ownership, including increased engagement and productivity, are being felt by public sector employees and service users; however, it needs still stronger support and communication from central government if it is to build on its initial success. The report backs vigorous coordination and leadership from the Cabinet Office, supported by the Prime Minister, in order for all government departments and local authorities to step up action that will allow viable employee mutuals to run public services. (7 June 2011)
If you wish to discuss any of the items noted in this section please contact Matthew Waters.
Education
DfE: Face reality, reform urgently: the Education Secretary Michael Gove has announced that the weakest 200 primary schools in the country will become academies in 2012/13. This ‘sponsored academy’ programme is in addition to the 1,200 schools that have already applied to convert to academy status. Local authorities with particularly large numbers of struggling primaries will be identified for urgent collaboration with the DfE to tackle a further 500 primaries. (16 June 2011)Young People's Learning Agency: 16-19 Bursary Fund - Guide for 2011/12: guidance on a new bursary scheme to help the most vulnerable 16-19 year olds in full-time education. The scheme is made up of two parts: a payment of £1,200 to a small group of the most vulnerable and a discretionary fund for schools, colleges and training providers to distribute. The guidance sets out details about the administration of the funding, including how the fund will operate alongside the transitional arrangements for those young people currently in receipt of EMA. The YPLA Chief Executive Peter Lauener has written to all local authorities asking them to play a key role in the distribution of the new 16-19 Bursary Fund. (17 June 2011)
If you wish to discuss any of the items noted in
this section please contact Caraline
Johnson.
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Governance
Institute for Government & Centre for Cities: Big
shot or long shot? How elected mayors can help drive economic
growth in England’s cities: the Localism Bill proposes to hold
mayoral referenda in 11 cities in England. If introduced, directly
elected city mayors would mark a significant shift in the local
governance landscape and local economic policy making. This
report considers the implications of a yes vote for
mayors for local economic development policies in some of England’s
largest cities. It discusses how the model as currently proposed
could go further and set sout how the economies of England’s
largest cities would benefit from a governance structure that takes
the best from the Mayor of London model, with greater powers over
issues such as transport and strategic planning and a remit
that effectively covers the whole economy of a city. (14 June
2011)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Health and Social Care
NHS Future Forum: Report on proposed changes to the NHS: the Forum was set up in April 2011 under the Government's NHS Listening Exercise as an independent group in order to ‘pause, listen and reflect’ on the content of the existing Health and Social Care Bill. It has now issued its key recommendations to Government on the future for NHS modernisation, looking at areas of the Bill which had prompted the most heated discussion and debate and improvements to the legislation where necessary. There is a summary report plus separate reports on each of the four core themes of the NHS Listening Exercise: Choice and competition; Clinical advice and leadership; Patient involvement and public accountability (which includes Health and Wellbeing Boards and local authorities); and Education and training. (13 June 2011)See also the Government response to the NHS Future Forum report: this summarises the key changes that the Government intends to make, largely structured around the four workstream themes considered by the NHS Future Forum. Some, but not all, of these changes require amendments to the Health and Social Care Bill. (14 June 2011)
Bevan Brittan has published an article that looks at what the prpoosed key changes in the Health and Social Care Bill might mean for local authorities: NHS Listening Exercise reforms - What might this mean for local government?
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Human Rights
Hillingdon LBC v Neary (by his litigation friend the
Official Solicitor; Equality & Human Rights Commission (Interested
Party) [2011] EWHC 1377 (COP) (CP): S, aged 21, had childhood
autism and a severe learning disability, and required supervision
and support at all times. This support was provided by his father,
N, with whom he lived, and the local authority H LBC. In
January 2010 N was unwell and it was agreed that S would stay in H
LBC's respite care support unit for two weeks until N was
restored. While S was at the unit, the staff became
concerned about his behaviour and stated that they wished to
keep S at the unit for long-term assessment. N continued to press
for S to return home but he remained at the unit. In April 2010 H
LBC issued a Deprivation of Liberty (DOL) authorisation under the
Mental Capacity Act 2005 and decided that S should remain at the
unit while it considered a long-term residential placement. In
October 2010 H LBC applied to the court for a number of
declarations regarding S. An Independent Mental Capacity Advocate
(IMCA) was appointed who reported that H
LBC was potentially not acting in S's best interests by
refusing N's request to have his son live with him at home,
and that no evidence had been presented to show that the
care N had given to S over the years was no longer
appropriate. She recommended that S return
home, possibly for a trial period, as further depriving S
of his liberty might lead to emotional harm, his wish to return
home was rational and understandable, and N had demonstrated
his willingness to work positively with professionals involved in
providing care for his son. Despite this report, H LBC issued a
further DOL authorisation. The Official Solicitor and N then
applied to the Court of Protection for a declaration that H LBC, by
keeping S in the support unit between January and December
2010, had acted unlawfully by depriving him of his liberty and
by failing to respect his right to family life in breach of Art.5
and Art.8 ECHR. The court terminated the DOL authorisation and S
returned home while proceedings continued.
The court held, granting the application, that H LBC had no
lawful basis for keeping S away from his home between 5 January
2010 and 23 December 2010 and so S was deprived of liberty
throughout the year. N had not consented and the
authorisations were flawed, but even if they had been valid,
they would not in themselves have amounted to lawful authority for
keeping S at the support unit. The fact that H LBC believed
that it was acting for the best was irrelevant - it acted as if it
had the right to make decisions about S, and it failed to
activate the required statutory safeguards. The removal of a
vulnerable adult from their carers could be justified only on the
basis that the State would provide a better quality of care, but H
LBC had failed to weigh the disadvantages of S living away from his
family against any supposed advantages of him living elsewhere, and
has thus breached his right to family life under Art.8. The best
interests assessments were flawed as they failed to consider S's
wishes to go home or N's request that he be returned to his care.
The failure to appoint IMCA, to conduct an effective
review and to issue timely issue of proceedings had
deprived S of a speedy decision on the lawfulness of his detention
and so amounted to a breach of his rights under Art.5(4). (9 June
2011)
Bevan Brittan has issued an Alert on this case - see Good
practice for local authorities and PCTs identified in the Steven
Neary case.
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Localism
HC Communities and Local Government Committee: Localism: this Commons Select Committee report examines the Government's policy to decentralise power and decision-making to communities and local agencies. It finds that Government’s desire to deliver localism is neither supported consistently across Whitehall nor implemented coherently by each department of state. MPs also warn that the Ministers have so far produced no compelling vision of what their imagined localist future will look like. The Committee states that the Minister for Decentralisation will need to bring coherence, rigour and clear priorities to the Government's programme for localism and it pledges to monitor closely how well he succeeds in doing this. In addition, MPs call for a more explicit statement about where the dividing line will be drawn between a central, light-touch framework for local services and unwarranted interference from Ministers in local affairs. (9 June 2011)DCLG: A plain English guide to the Localism Bill - Update: revised guide to the Localism Bill, which describes the main measures under four headings: new freedoms and flexibilities for local government; new rights and powers for communities and individuals; reform to make the planning system more democratic and more effective; and reform to ensure that decisions about housing are taken locally. (15 June 2011)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Rates
DCLG: Draft guidance note for local authorities on implementing the cancellation of certain backdated business rates liabilities: announces that DCLG is to make regulations under the Localism Bill (once enacted) that will cancel the bills of certain businesses that were hit with unexpected and significant backdated rates where their property was split from another property for rating purposes. This draft guidance note sets out how certain backdated rates liabilities, relating to the 2005 rating list, will be cancelled and gives examples of when the cancellation applies. It also contains the proposed draft of the secondary legislation that will implement the cancellation. (14 June 2011)If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Waste Authorities
DEFRA: Government review of waste policy in England: sets out the findings from the Government's comprehensive review of waste policy and delivery in England, with actions and commitments that set a clear direction towards a zero-waste economy. The stated priorities include:
- accelerate recycling and reducing waste creation by providing incentives for householders, recycling-on-the-go schemes, better services for businesses and voluntary responsibility deals focusing on the hospitality industry, paper, direct mail, textiles, and construction waste;
- abolition of bin fines and taxes, and introduction of new powers to deal with repeat fly-tipping offenders and genuine nuisance neighbours; and
- crack down on illegal fly-tippers, with appropriate powers to seize vehicles, and consideration of revised penalties that might include offenders clearing up items they have dumped.
The action plan will form the implementation
plan for waste policies in this waste review and for the rest of
this Parliament; it includes the timetable for delivery of
each action. (14 June 2011)
Bevan Brittan has issued an Alert on the Waste Review that looks at
its key messages for waste authorities:
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Forthcoming seminars in 2011 include:
- 13 September (Bristol) & 15 September (London): Procurement update
- 21 September (London): Governance, service restructuring and social enterprise
- 27 September (London) & 5 October (Birmingham): Outsourcing
- 6 October (London): Education - where are we now?
Full details of our new Training Programme for 2011/12 will be distributed shortly - see our website.