Written evidence submitted by the Disability Law Service (JRR 0039)

 

This is a response to the call for evidence from the Joint Committee on Human Rights regarding the Government’s proposed judicial review reforms. 

The Disability Law Service disagrees with the proposed reforms as they fail to take into account of the way community care law works in practice. We believe that the reforms could potentially devastate an important area of law which currently safeguards the rights to care for the most vulnerable in society, namely those with the most severe of disabilities and the elderly.

We were unable to identify any adequate attempt to consider the potential effects of these proposals on those with disabilities. We could not find any consideration of the joint impact of these changes coupled with the impact of the other legal aid proposals upon those with disabilities.

Furthermore, we are also opposed to the lowering of the legal status of the Public Sector Equality Duty. The lowering in legal status would remove the current protections that exist for those with disabilities and without the ability to challenge decisions via the court there will be no way for the Public Sector Equality Duty to be legally enforced.

DLS Background

 

  1. DLS has been providing free legal advice and representation for those with disabilities and their carers since 1975. Its purpose is to challenge the poverty and inequalities that disabled people face by ensuring that their legal rights and entitlements are safeguarded.
  2. We are one of the few legal organisations controlled by disabled people. We provide free legal advice and representation in various areas of law across England and Wales.
  3. DLS act as a first port of call for disabled people seeking legal advice through our legal access service. This service processes over 5,000 enquiries a year. Our dedicated triage team assists by identifying the problem in question, providing legal information, and referring cases to DLS legal advisers where necessary. If the enquiry does not fall within DLS’ areas of specialism then service users are signposted to other relevant organisations.

 

We provide this account on behalf of the many clients who have sought our services.  The Disability Law Service has been running cases in the area of community care for over 20 years. This has included a number of high profile cases such as the case of  Elaine McDonald vs the Royal Borough of Kensington & Chelsea [2011] UKSC 33 On appeal from: [2010] EWCA Civ 1109, R v Islington ex parte Rixon (1997-8) 1 CCLR 119, R (Garnham) v Secretary of State for Health [2009] EWHC  574 (Admin) and others.

 

 

DLS Response Regarding Costs for Judicial Review

 

We object to the proposal not to pay the costs of a case where permission has not been granted. We are of the opinion that this proposal fails to consider the effect that this can have on specific areas of law such as community care. In this case we expect the following may take place:

 

No evidence has been provided to suggest that the system has been misused with an abundance of unmeritorious cases within the area of community care. Neither have we been provided with any evidence to show a substantial increase in the number of cases within the area of Community Care in general. We also submit that it is the legal aid agencies job to filter cases that are without merit which is substantially safer than effectively removing the right of redress by putting in place in impossibly high test for Judicial Review.

 

Disability and Community Care Law

Community Care is a specialised niche area of law which on many occasions can require oral permission hearings just so that the judge can understand the area and the surrounding legislation. It is an area where many of those affected by the decisions of local authorities do not get access to advocacy or representation and so never receive adequate care. The ombudsman has no power to enforce any action and even to get a determination would usually require a lawyer just to make sense of a situation. We find time after time that local authorities are enacting policies across the board which are unlawful and there is no way to challenge and force a change except via judicial review.

As noted above, we provide free telephone advice given by solicitors to the members of the public with community care problems. Due to the nature of the area of law, almost every issue concerns a person with a disability. We have found that the number of telephone calls have been increasing as Local Authorities have had their budgets reduced. This has led to those with disabilities having their care reduced unlawfully and any changes can only increase this size of the problem. There has been no consideration of the effects of such proposed changes on those with disabilities. We would request that if there is any doubt as to the nature of the effects on those with disabilities or the levels of problems that they are facing then we would invite anyone from the committee or from the Ministry of Justice to come and listen to our advice lines. This is an open invitation.

 

Does the granting of permission in Judicial Review cases equate to success in a Judicial Review case?

The experience of the solicitors acting at the Disability Law Service over the past 5 years is that the granting of permission does not in anyway indicate whether a case has had merit or has been successful.

This is a fundamental flaw which is evident in the proposed amendments. As the following case examples will show, permission rather pertains to whether there is currently still a live matter which has meritorious grounds for challenge. In the first case example we mention below, the judge specifically referred to the proposed rules and stated that this is a case which would be affected in the future should the Government’s proposed reforms of Judicial Review come into force. He said this because he was issuing a positive order, yet was not able to grant permission as the local authority had made a last minute concession which meant they were no longer breaking the law and instead there was a new decision which could be challenged. The concessions which the local authorities make are concessions which they were not willing to make until an application had been made to the high court or they believe that issuing of an application for permission to proceed to Judicial Review is imminent.

 

Failure to provide funding

There is no option to ensure local authorities fulfil their duty to provide care in urgent cases, unless by way of an order issued by the High Court, or alternatively when threatened with a potential Order.

In our experience there has been an increasing request for assistance in the area of community care, as local authority funding has been cut. In the past seven days we have received sixty requests for assistance regarding community care issues with local authorities. Earlier this year we discovered one local authority in particular remove twenty four hour care packages from numerous individuals who then sought advice via our service. Fortunately, we succeeded in stopping this by sending the local authority in question pre-action protocol letters informing of the threat of Judicial Review. Removal of the twenty four hour care package would have seen the local authority save thousands of pounds. There remain countless others that encounter such problems of whom have not sought legal advice.

Failure to provide funding when permission has not been granted will subsequently lead to an inability to challenge the actions of local authorities which infringe upon the most basic rights of the elderly and those of disabilities. Implementing the proposal will exacerbate the effects of what is already a torturous situation given that local authorities are cutting funding for care packages left, right and centre. It will enable them to continue violating the most basic human rights without repercussion.

As solicitors practising community care law, we do not often have to issue a claim in the high court but conversely we usually have to threaten Judicial Review in almost every one of our cases. We have found that Local authorities appear to be breaking the law across the board in adult social welfare and only appear to wish to rectify wrong doing if they are of the belief that action will be taken against them. Local authorities have a tendency to wait until the deadline date before taking action, knowing that court proceedings will follow. Some local authorities will make you issue in the high court and others will wait till the deadline on a letter before claim if they believe you are really intent on issuing the case in the high court.

 

Current barriers to funding in Judicial Review cases in community care

The proposed changes do not consider the fact that there are already existing obstacles to overcome when attempting to make an application for Judicial Review. Local Authorities are aware that cases cannot be issued in the high court unless we have a meritorious case which has usually had a positive advice drafted by a barrister where the prospect of success will invariably need to exceed the 50% mark.

We have known of defendants attempting to contact the Legal Aid Agency just to attempt to have the certificate of public funding removed so that a challenge cannot be brought. This is important as there is no other way to make a local authority take action. However, this would not be such if they thought a case was unlikely to receive funding and subsequently doubtful it would reach the High Court. Even if a case has a 100% prospect of success this does not mean permission will be granted.

 

Case examples - The case of Mr A

This year we were forced to issue a case in the High Court because a local authority had failed to provide adequate care to an individual suffering from Muscular Dystrophy. This person had been left with no choice but to live on a sofa for five years without any care being offered by the authority in question. The clients’ father, aged 80 had to meet his   son’s care needs, whilst also providing care for his wife, aged 79 whom suffered from Alzheimer’s disease. Moreover, the local authority had been obstructing the Claimant’s access to a Disabled Facilities Grant to enable him required adaptations to extend his parent’s house for the purpose of building an additional bedroom.

We attempted negotiations for eight months and sent numerous letters before action. We applied for judicial review but the local authority had made some concessions the day before a permission hearing. We had a full day oral permission hearing but we were not granted permission but instead given a second permission hearing despite the first hearing resulting in a positive order for our client. The local authority failed to comply with the order and for the second time the oral permission hearing lasted a whole day. The hearing again resulted in a positive order. However, we were not granted permission due to last minute concessions finally made on the authority’s part following the second order. We were instead given a third permission hearing. Currently, a Disabled Facilities Grant has been agreed and a care package offered, yet we were never granted permission by the High Court. This is a common occurrence and the reason why the statistics in community care cases do not provide an accurate picture.  This case would be classified as not having permission.

 

The case of Mr B

In this matter the local authority were about to remove a person with severe autism from his care home as they thought it was too expensive. They had not found an adequate place to meet his needs and had not even carried out a new needs assessment, care plan or risk assessment of what the effect could be. We were instructed two weeks before the proposed move which his parents had been protesting against. With the threat of judicial review placed upon the local authority the local authority have decided to take no action and stated in correspondence that this was only because of the threat of judicial review. We have had to keep this case open as the local authority appear to be waiting until we go away so they can remove him.

 

The case of Mr C

This client was threatened with being evicted from his care home despite serious safeguarding issues. He was given 7 days notice and told that he should report to the local authority homeless section stating he was homeless. There was no needs assessment or care provision put in place. His father contacted us and we contacted the local authority. The local authority backed down immediately with the threat of judicial review.

 

The case of Miss D

The client was not receiving an amount of care to meet her needs, the local authority would not state how the needs were met or increase the care package. She has Multiple Sclerosis and required a high degree of care. We threatened judicial review which had no effect so we issued a claim in the high court and they back down immediately agreeing to provide reasons and to reassess her care package. She was then given an increased care package. This case would be classified as not having permission.

 

The case of Mr E

This case involved a mother whom looked after her severely disabled son whom had a multitude of disabilities. In this matter the local authority would not provide a carers assessment, we sent numerous letters before claim and had meetings. We finally issued in the high court and they gave in within one hour of receiving notification from us of having issued the case. In this matter they contacted the LAA and tried to have the certificate taken away. This case would be classified as not having permission.

 

The case of Miss F

This case involved a mother with a severe disability who required a Disabled Facilities Grant but the local authority would not allow her to apply. They stated they were not allowed to under the law. We instructed a barrister, pointed out that they had discretion and that there was guidance within the guidance and again threatened Judicial Review. And again they back down

 

The case of Miss G

In this matter a person with so severe care needs that they required 24 hour care was given an assessment and then reduced to only a few hours a week. Again we threatened Judicial Review and they put the 24 hour care back in place.

 

The complaints procedure

It has been often argued that those with disabilities can use the complaints procedure. We can state that from our experience and our clients experience that the complaints procedure is not fit for purpose. The local authorities have a vested interest in stating that there has been no wrongdoing on their part. Often issues can be matter of life or death (i.e. someone’s 24 care package being reduced to 4 one hour visits per day).  Therefore a complaint is clearly not a viable option,

Increasingly we are hearing reports from callers to our advice line that their complaints are not being dealt with, or are being dismissed out of hand with little or no fair and transparent consideration of the facts by the local authority.  This is symptomatic of a complaints procedure being controlled by the organisation being complained about.  This used to be the case with complaints against the police until it was acknowledged that you need a degree of independence when dealing with issues.  At a time when local authorities are having their budgets put under increasing pressure, and are having to make financially sensitive decisions, it is vital that an independent body is responsible for dealing with complaints. 

 

Conclusion

We have many of these examples and our advice lines show the same material and why there is a need for the Judicial Review or a tribunal with the same powers including the ability to make an urgent and immediate decision which is legally enforceable.

We kindly request that the government reconsiders this matter in light of the way permission statistics are used, as they do not provide a portrayal as to whether a community care case has been successful. And again we extend the invitation to listen to our advice lines if there is any question as to the veracity of the situation within community care or the need for Judicial Review in its current format.

 

27 November 2013