5.1Legislation and guidance: functions conferred on public bodies
This chapter outlines considers judicial remedies for when things go wrong. That is, remedies which in principle involve legislation directly related to aspects of service provision and, ultimately, could involve the law courts.
Welfare legislation is the logical starting point, because without it, local social services authorities and NHS bodies would neither exist nor know what their functions were (e.g. Local Government Act 1972; NHS and Community Care Act 1990; NHS Act 2006). Broadly speaking, a public body only acts lawfully if it acts within the relevant legislation. Central government also produces plentiful guidance to back up the legislation; depending on its type, this guidance has greater or lesser legal significance.
Law is not located solely in legislation but in the decisions of the law courts as well. Apart from interpreting the meaning of legislation, the courts bring to bear a number of common law principles when they ‘judicially review’ the decisions of public bodies such as local authorities and the NHS. These principles broadly translate into what can be termed ‘fairness’ in decision-making and generally complement professional good practice.
For local authority and NHS staff, such principles are particularly important because they concern the manner in decisions about assessment and services are taken. Whether they are saying ‘yes’ or ‘no’ to people, most staff and managers would wish to feel that they were doing so fairly. To some extent, acquaintance with these principles is likely to result in a better quality of decision-making and at the same time reduce the likelihood of successful litigation against the local authority or NHS body.
In addition to welfare legislation, this chapter outlines a range of other law and legislation – including negligence, health and safety at work, human rights and disability discrimination – with which local authorities and NHS bodies must also comply.
5.1 LEGISLATION AND GUIDANCE: FUNCTIONS CONFERRED ON PUBLIC BODIES
Local authorities and NHS bodies are creatures of statute; they exist only by virtue of it. Thus, in a straightforward sense, if their decisions, policies and criteria are inconsistent with legislation, then they will go wrong in law. Beyond their very existence, legislation confers functions on these public bodies. These functions basically comprise duties (what must be done) and powers (what may be done).
5.1.1 GENERAL DUTIES
Duties are generally indicated by words such as ‘shall’ or ‘must’.
Some duties are characterised as general or ‘target’ in nature, owed to the (local) population at large rather than each individual person. As such they are therefore difficult for individuals to enforce. Typical general duties are to be found in ss.1 and 3 of the NHS Act 2006 (health services: see R v ILEA, ex p Ali), s.29 of the National Assistance Act 1948 (welfare services for disabled people: R v Islington LBC, ex p Rixon) or s.17 of the, Children Act 1989 (services for children need: R(G) v Barnet LBC).
5.1.2 SPECIFIC DUTIES
Other duties are regarded as specific duties towards individual people. These can in principle be enforced by individuals in the law courts. They are sometimes referred to as absolute duties, although the term ‘absolute’ is to some extent misleading. Such duties are often subject to certain (sometimes stringent) conditions being met. In addition, a failure to perform the duty may be excused if reasonable or best endeavours have been employed (e.g. R(W) v Doncaster MBC). Nonetheless, they are very much stronger than target or general duties.
For instance, a strong duty of this type has been identified by the courts in s.2 of the Chronically Sick and Disabled Persons Act 1970 (CSDPA: welfare services for disabled people), s.21 of the National Assistance Act 1948 (residential accommodation) and s.117 of the Mental Health Act 1983 (mental health after-care).
Individual enforceable duty. When a local authority proposed to remove or reduce services from up to 1500 people, the courts examined s.2 of the CSDPA 1970. The House of Lords concluded that in setting criteria of eligibility, the local authority could have regard to its resources. However,once a person was assessed as meeting the criteria, a duty arose to meet need – and lack of resources would be no defence for non-performance of that duty (R v Gloucestershire CC, ex p Barry).
The existence of a specific duty is indicated, for example, by the word ‘shall’, coupled with reference to ‘any person’. These words are to be found in s.2 of the 1970 Act. In contrast, s.17 of the Children Act 1989, a target duty only, refers to children in need generally, not to any specific child. Even so, this distinction is not always a reliable indicator; s.21 of the 1948 Act has been held to give rise to just such an individual duty (R v Sefton MBC, ex p Help the Aged; R v Kensington and Chelsea RBC, ex p Kujtim), but does not carry such an obvious reference to ‘any person’, referring instead only to ‘persons’ generally.
Powers constitute what may, but does not have to be, done. An example of a power is contained in s.45 of the Health Services and Public Health Act 1968 concerning the provision of services for older, non-disabled people.
Legislation sometimes gives central government the power to issue directions. Although not strictly legislation and not subject to Parliamentary approval, directions create legal duties; they tell the local authority (or NHS) what it must do. For instance, directions have been issued in relation to residential accommodation (National Assistance Act 1948, s.21), welfare services for disabled people (National Assistance Act 1948, s.29), mental disorder (NHS Act 2006, s.254 and schedule 8), and NHS continuing health care services (see Chapter 18).
Directions normally bear a clear label to that effect. However, in one case concerning the NHS, the courts stated that although the word ‘direct’ was not necessarily required in order for a direction to be made; nonetheless clarity was desirable (R v Secretary of State for Health, exp Manchester Local Committee).
Legislation sometimes gives central government the power to issue approvals. Although not strictly legislation, approvals give local authorities legal powers. For instance, approvals have been passed in relation to residential accommodation (National Assistance Act 1948, s.21), welfare services for disabled people (National Assistance Act 1948, s.29), services for illness (NHS Act 2006, s.254 and schedule 20) and welfare services for older people (Health Services and Public Health Act 1968, s.45).
5.1.6 GUIDANCE FROM CENTRAL GOVERNMENT
Supplementary to legislation is the copious guidance issued by the Department of Health to local authorities and to the NHS. As far as local social services authorities are concerned, there are two types of guidance, stronger and weaker.
Stronger guidance, sometimes referred to as statutory or policy guidance, is identifiable when it states that it is made under s.7 of the Local Authority Social Services Act 1970. This Act places a duty on local authorities, in the exercise of their social services functions, to act under the general guidance of the Secretary of State. Such guidance must normally be followed by local authorities; deviation would be permissible only for good reason, and even then without substantial departure from the guidance (Robertson v Fife Council). In which case, a failure to follow it can amount to a breach of statutory duty (R v North Yorkshire CC, ex p Hargreaves: local authority failing to take account of the preferences of a service user).
Even the weaker type of guidance, sometimes referred to as practice guidance and not made under s.7 of the 1970 Act, should still be had regard to by local authorities. A failure substantially to adhere to it without good reasons could be unlawful (R v Islington LBC, ex p Rixon).
For the NHS, there is no formal distinction between stronger (statutory) and weaker guidance. Nevertheless, a failure to take proper account of guidance could in principle result in unlawfulness. This is so, even if the guidance does not bear a ‘badge of mandatory requirement’ denoted by words such as ‘shall’, rather than just ‘ask’ or ‘suggest’ (R v North Derbyshire Health Authority, ex p Fisher).
In addition to the general run of guidance are codes of practice. Generally, these must be had regard to. A failure to adhere to the code by the relevant decision-making body is likely to be scrutinised closely by the courts. Departure from the code without good reason may lead to a finding of unlawfulness. Examples of such codes include those for the Mental Health Act 1983 (DH 2008c), the Mental Capacity Act 2005 (Lord Chancellor 2007), and the Disability Discrimination Act 1995 (DRC 2006).
18.104.22.168 Judicial approach to community care guidance
The amount of guidance issued by central government to local social services authorities and NHS bodies over the last 20 years is immense. Before the advent of the Internet, there was less guidance but it was difficult to identify and obtain. Now, it is more easily found online, but in such excess that the wood cannot be seen for the trees. The Department itself lost track long ago of what it has issued and has no idea of what is extant and what is not. The result is a morass.
The Department of Health has, over the years, followed incoherent practices concerning the cancellation of guidance. Sometimes it refers to no cancellation date, sometimes to a review date and sometimes to a cancellation date. But even in the case of the last category, the meaning of the cancellation date is not clear; for example, in the case of a policy that is clearly intended to run for years, a 12-month cancellation date has the effect of cancelling the guidance but not the policy – a strange mixture.
The courts have shown themselves willing to scrutinise, sometimes closely, the guidance issued to local authorities and sometimes to the NHS. They have also been prepared to identify its shortcomings, both general and specific, when it is not comprehensible or correct. Even in the case of the NHS, notoriously more difficult to challenge legally than local authorities, the courts have made some inroads over the past nine years – for instance, criticising as inadequate and confusing guidance issued about entitlement to NHS continuing health care (R(Grogan) v Bexley NHS Care Trust).
On the one hand, the courts might place considerable weight on adherence to guidance. So, when a local authority failed to follow community care policy guidance and practice guidance in respect of care plans, it was found to have acted unlawfully (R v Islington LBC, ex p Rixon). Similarly, when an authority tampered with the wording of policy guidance on eligibility criteria, the court found it had done so unlawfully (R(Heffernan) v Sheffield CC). Alternatively, the courts sometimes dismiss government guidance itself with varying degrees of severity.
Critical judicial approach to Department of Health guidance: improper, logically dubious, elusive, unclear. In a case about home care services for disabled people, one of the law lords merely stated of the relevant guidance that he did not regard it as ‘proper material for the construction of the critical provision’ but still found it satisfactory that his view, arrived at independently of the guidance, nevertheless was consistent with it (R v Gloucestershire CC, ex p Barry).
In another case, the judge expressed his respect and sympathy to the authors of practice guidance (SSI/SWSG 1991) – given the complexity of the underlying legislation – but nonetheless questioned its coherence and logic (R v Gloucestershire CC, ex p RADAR). In a third, the House of Lords went further, again according its respect to the Department of Health’s guidance, but concluding that it was simply wrong (R v Wandsworth LBC, ex p Beckwith); the government department had in effect misunderstood its own legislation. In a fourth, the courts referred to aspects of the Department of Health’s 1995 guidance on continuing care as ‘elusive’ and unclear (R v North and East Devon HA, ex p Coughlan). Seven years later, new guidance on the same issue was criticised as unclear (R(Grogan) v Bexley NHS Care Trust). And guidance on ‘fair access to care’ and eligibility criteria for social services was not as clear as it might have been (R(Heffernan) v Sheffield CC).
22.214.171.124 Guidance: four times cursed?
Thus, guidance issued by the Department of Health and other government departments to supplement legislation may sometimes give helpful pointers to local authorities and NHS bodies – but it tends to introduce substantial uncertainty because of its indeterminate legal status and effect. Quantity, incorrectness, impenetrability, contradiction, jargon, repetitive- ness, inconsistency, highly variable quality, incoherence all add to the problems it generates. The Department of Health website is awash with it; local authority staff and managers spend vast amounts of time and money trying to understand and implement the numerous policies contained in it; and community care legal case law is strewn with references to it.
The dichotomy between legislation and guidance is longstanding, and there are various well-rehearsed arguments for and against the greater use of guidance in the implementation of policy (e.g. Baldwin 1995; Ganz 1987). For instance, guidance can be written in ordinary and helpful language, be produced and disseminated more quickly than legislation, and tends to give local authorities and NHS bodies flexibility in how to implement policy.
On the other hand, it is not placed before and considered by Parliament, in contrast to legislation. This means that important policy matters which seriously affect people can bypass Parliamentary scrutiny altogether. Guidance might simply be badly written, and even if the language is clear, the obligations (if any) created might be indistinct.
The general drawbacks and uncertainties of government guidance are nothing new. Some 50 years ago, a court characterised it as ‘four times cursed’: (a) it did not go through Parliament; (b) it was unpublished and inaccessible by those affected; (c) it was a jumble of legal, administrative or directive provisions; (d) it was not expressed in precise legal language. This was in contrast to legislation which was ‘twice blessed’ when it passed through both Houses of Parliament (Patchett v Leathem). In a more recent case, Department of Health guidance was held to be in effect at least twice cursed by the House of Lords:
Department of Health caught out using a back door unlawfully, to change rules about the employment of doctors. The Department of Health issued guidance about the employment of doctors from overseas. Essentially it was immigration guidance. Such matters fell legally under ss.1 and 3 of the Immigration Act 1971. This meant that they should have been dealt with under the procedure prescribed by that Act – namely changes to the rules must be laid before Parliament, which has the power to annul them.
Instead the Department of Health attempted to introduce the new rules by the back door. Nothing was laid before Parliament. This was legally impermissible. To make matters worse, the House of Lords noted that to speak of any such guidance having been ‘issued’ at all, suggested a formality that was distinctly lacking. It appeared on the NHS Employers’ website, but no official draft, record or statement had been placed before the House of Commons. Instead the House was referred to an email beginning ‘Dear All’ sent by some official in the Immigration and Nationality Department of the Home Office. The House of Lords observed that it was ‘for others to judge whether this is a satisfactory way of publishing important governmental decisions with a direct effect on people’s lives’ (R(Bapio Action) v Secretary of State for the Home Department).
Sometimes, guidance simply does not resolve the issues. For instance, a glance back to the debates in 1989 and 1990 on the NHS and Community Care Bill reveals that some of the proposed amendments, so dismissively rejected by government at the time, were about matters that have continued to be troublesome and have precisely not been solved by guidance. These include hospital discharge procedures, care plans, giving of reasons for decisions, advocacy, incontinence services, assessment of carers, direct payments, and so on. Indeed, some of these issues later triggered legislation: for example, the Carers (Recognition and Services) Act 1995; Carers and Disabled Children Act 2000; Carers (Equal Opportunities) Act 2004; Health and Social Care Act 2001 (covering direct payments); the Community Care (Delayed Discharges) Act 2003.
The very bareness of s.47 of the NHS and Community Care Act 1990 governing community care assessment was deliberate. During the Parliamentary passage of the Bill, the government repeatedly opposed amendments that would have given it rather more substance – on the grounds that such legislative detail would have placed local authorities in a bureaucratic straitjacket. Far better express what was wanted in guidance, and leave local authorities all the more freedom to get on with it. The following quotes from Parliament, concerning community care legislation, illustrate some of the arguments for and against the use of guidance (the fourth example being a reminder that it is not just guidance that might be ineffective, but legislation too):
Forgetting guidance in the hurly-burly and rush. ‘We feel that it is important to have such a provision written into the [NHS and Community Care] Bill. I say that because when a Bill becomes an Act of Parliament people look upon it as legislation and they forget everything else. They forget about White Papers and Green Papers and also, with the hurly-burly and the rush which ensue, they forget about the circulars issued by the department’ (Hansard 1990).
Ineffectiveness of guidance on incontinence services. ‘The Minister referred to government health notice 88/26… That circular is what the Government recommend. It is from that circular that the wording of the amendment [duty to provide a district-wide continence service] comes. It is what the Government want, but the Minister went on to say that district health authorities should be left to decide on their own priorities. The situation has continued to deteriorate since the health notice went out. That shows how ineffective notices without legislation can be. There is therefore a need for an amendment such as this so that provision is guaranteed under legislation’ (Hansard 1990a).
A couple of ‘silly circulars’ and inaction. ‘Apart from a couple of silly circulars they have sent to local authorities, the Government’s excuse for inaction is that they do not wish to dictate to local authorities. They say that they respect local autonomy’ (Hansard 1973).
It is ‘all in circulars’. Lord Mottistone demanded of Baroness Blatch: ‘Is she telling us that effectively – and until we see it we cannot believe it – regulations and guidance will replace this part of the Bill? Does she not agree with me that it is very important to have in major legislation underpinning matter from which circulars can be developed rather than circulars, even if they are already in existence? Circulars can be changed at the drop of a hat because they do not even have to come before Parliament. The whole burden of my noble friend’s remarks, as I saw it, was: “Oh yes, it is all in circulars.” Does she not agree that that is a very inadequate reply? It is terrible that, after seeing my noble friend, this very important matter is being left to circulars, whether or not they are issued. I just do not like this.’
In reply: ‘My Lords…my noble friend has in a sense contradicted himself in his last remarks in that he has pointed to a matter which is enshrined in legislation and then said that that was not effective – that is section 117 of the Mental Health Act’ (Hansard I990f).
5.2 JUDICIAL REVIEW
Law stems from the decisions of the law courts as well as legislation. In particular, judicial review cases are of fundamental importance in understanding the meaning and effect of community care legislation.
5.2.1 JUDICIAL REVIEW: PRINCIPLES
The common law principles applied by the courts in judicial review test, overall, the fairness of decisions, in particular the decision-making process, taken by public bodies. Some of these principles are summarised, non-exhaustively, below. It should also be noted that these principles tend to run into one another and are used by the courts with a degree of imprecision and flexibility.
126.96.36.199 Judicial review: ‘hands-off’ approach
Judicial review is sometimes referred to as a supervisory jurisdiction applying to public bodies. In other words, the courts ensure that public bodies stay within reasonable bounds when they take decisions.
The courts recognise that local authorities and the NHS have a difficult job to do and give them considerable leeway to get on with it. That is, they generally afford public bodies a fairly wide area of discretion, with which the courts will not interfere. However, if public bodies stray outside this area of discretion, the courts will strike down decisions as unlawful.
It is important to remember that judicial review is, in principle at least, about ensuring that local authorities have acted broadly within the law, rather than about the merits of decisions. If a local authority or NHS body has made an unlawful decision, the court usually orders it to go away and retake it – this time in a lawful manner – rather than tell the authority exactly what the outcome of the decision should be.
Indeed, the local authority or NHS body might still reach the same conclusion as it did before, but this time around it will do so on the ‘right’ grounds. On the other hand, the implications of an adverse ruling might sometimes give little room for manoeuvre; and in some circumstances the court will directly order provision of a service. This occurred, for instance, in three cases concerned with the provision of ordinary residential accommodation (i.e. ordinary housing) by local social services authorities under s.21 of the National Assistance Act 1948 (R v Wigan MBC, ex p Tammadge, R(Batantu) v Islington LBC and R(Bernard) v Enfield LBC). Likewise, when there was ongoing delay in providing suitable accommodation for a severely disabled man, the court ordered the local authority to provide weekend respite care within 28 days of the court hearing (R(Hughes) v Liverpool City Council).
The courts do not wish generally to step into the shoes of professionals – such as health professionals or social workers – and question the merits of decisions. However, they might do so on occasion (see discussion on proportionality below). There is thus ample room for professionals to make poor decisions without triggering judicial intervention; in other words, a ‘bad’ decision is not necessarily an unlawful one.
Doubtful decision but not unlawful. A man with multiple sclerosis, receiving a 24-hour-a-day package of care, had his needs reassessed by the local authority. The upshot was that his care package was reduced to five hours. The judge had grave misgivings as to whether the five hours could meet the man’s needs, but felt unable to interfere since the decision did not constitute irrationality (R v Haringey LBC, exp Norton; although the reassessment was in fact found to be unlawful on other grounds).Similarly, in another case, the judge could not help but note the care on offer was not ‘generous’, but then it did not have to be, since adequacy of provision was all that was required (R (Heffernan) v Sheffield CC).
188.8.131.52 Fettering of discretion: rigid policies
The courts and ombudsmen generally react against policies applied so inflexibly that exceptions cannot be taken account of. They will look to see whether there was a genuine mechanism for the making of exceptions.
Rigid policies and fettering of discretion. A local authority’s policy on holidays meant that it would never,as a matter of policy, render full assistance – whatever the person’s needs. The court held that this policy fettered its discretion (R v North Yorkshire CC, ex p Hargreaves no.2).
When a local authority set its face, come what may, against paying over a certain amount of money for a residential placement for a young man with learning disabilities, the court found that it had fettered its discretion (R(Alloway) v Bromley LBC).
For the local ombudsman, the imposition by a local authority of a ceiling on home care packages for older persons constituted maladministration, because it had fettered its discretion; the mechanism the council had for considering exceptions was ineffective because it never made exceptions (Liverpool CC 1998a).
Rigidly imposing a policy preventing council tenants from transferring home, if in rent arrears, resulted in a fettering of discretion and an ‘appalling catalogue of neglect’ by the local authority which was both welfare authority and landlord. This was because the policy was imposed on a family with a severely disabled son with exceptional needs; the local ombudsman recommended £20,000 compensation (Bristol CC 1998).
Notoriously, judicial review cases are more difficult to conduct successfully against the NHS, but increasingly the courts have been prepared to consider whether local NHS policies amount to an unlawful fettering of discretion. For instance, the Court of Appeal found a health authority to be operating unlawfully a blanket prohibition on gender reassignment surgery (R v North West Lancashire Health Authority, ex p G, A, D). And, even when the NHS refused a woman cancer treatment but was not fettering its discretion – because its policy allowed exceptions – its inability to demonstrate any rational basis for identifying the exceptions meant the policy was still unlawful (R(Rogers) v Swindon NHSPCT). Similarly, a failure to provide a service for a person, who clearly fell within the exceptional circumstances outlined in a primary care trust’s policy, was held to be irrational and unlawful (R(Otley) v Barking & Dagenham PCT).
Nevertheless, penurious local authorities and NHS bodies can be reassured that the principle of not fettering their discretion does not open floodgates. This is precisely because it is all about making exceptions. On the other hand, because of the prevalence of rigid and crude policies in health and social care, it is a principle that can be employed to challenge local authority decisions and to invalidate them.
The principle of not fettering discretion should therefore not be treated lightly. Furthermore, the courts have held that it applies in the context of not only statutory duties but also powers (British Oxygen v Board of Trade). For instance, in one case, a policy never to award discretionary housing grants would have amounted to a fettering of discretion, if this had indeed been the policy (R v Bristol CC, ex p Bailey).
184.108.40.206 Taking account of relevant factors and unreasonableness
In the context of community care assessment, the courts have on a number of occasions scrutinised the decision-making process underpinning the assessment in order to ensure that all relevant factors have been taken account of.
Relevant factors identified as part of a lawful assessment have included, for instance, psychological issues (R v Avon CC, ex p M), cultural and language issues (R(Khana) v Southwark LBC), medical factors (R v Birmingham CC, ex p Killigrew), people’s preferences, as demanded by Department of Health guidance (R v North Yorkshire CC, ex p Hargreaves), a background of domestic violence (R(Khan) v Oxfordshire CC), and health and safety of staff (R v Cornwall CC, ex p Goldsack; R(AandB) v East Sussex CC (no.2)). It is by no means complicated to achieve this requirement. For example, a purported assessment of the manual handling requirements of a woman with multiple disabilities simply failed to consider the obvious about her needs; namely, the comparative risks of hoisting or transferring her otherwise, and of the specific risks posed by her osteoporosis. This meant that key issues appeared not to have been addressed. The judge therefore gave permission for a judicial review case to be brought against the local authority (R(Clegg) v Salford CC).
The principle has also been applied to NHS decision-making. For instance, when considering whether to provide a cancer drug, a primary care trust was held to have failed to take account of the possibility that the drug would prolong the patient’s life for more than a few months. It had therefore not taken account of a relevant factor (R(Otley) v Barking & Dagenham NHS PCT).
220.127.116.11 Relevant factors: giving them weight
Traditionally, the courts have often looked only to see that all the relevant factors have been taken account of, and not expressed a view about how much weight should have been placed on any particular factor. They would normally interfere only if, despite all relevant factors being taken account of (and irrelevant factors having been disregarded), a decision was so unreasonable that no reasonable authority could possibly have come to it (Associated Provincial Picture Houses v Wednesbury Corporation).
Another way of putting such unreasonableness has been to describe it as irrational (Council of Civil Service Unions v Minister of State for the Civil Service) or even a taking leave of senses (R v Secretary of State for the Environment, ex p Nottinghamshire CC). Thus, when a local authority or NHS body has blatantly overstepped the mark, and none of the other principles used in judicial review spring to mind, the courts may brand a decision irrational. This might typically occur where the lack of logic is blatant. For instance, when a local authority was working out a person’s income, in order to make a charge for attendance at a day centre, it took account of the element of a disability benefit that was being received for the purpose of night-time care. This was held simply to be irrational (R(Carton) v Coventry CC). Likewise, when a primary care trust blatantly failed to consider the relevant issues in deciding whether exceptionally to provide cancer treatment for a person, the court found irrationality (R(Otley) v Barking and Dagenham PCT).
Where human rights are concerned, the courts may employ what they refer to as heightened or even anxious scrutiny (R(Daly) v Secretary of State for the Home Department). This means they may feel obliged to interfere to a greater extent with the decision-making of the relevant public body. In such circumstances, the courts may creep closer to considering the merits of a decision, the weighting given to particular factors, and whether a correct balance between has been struck. This was discussed in R(A&B) v East Sussex CC (no.2), a dispute about the tension between manual handling and human rights of two people with profound and physical disabilities. When the courts interfere in this way, they sometimes explain it as the application of a principle known as proportionality. This is used to question whether the decision maker has maintained a sense of proportion and balance when weighing up competing factors.
18.104.22.168 Illegality: breach of duty and blatant contravention of legislation
Sometimes local authorities explicitly breach duties that are clearly set out in legislation. For example, a failure as a matter of policy to consider whether to provide for a person’s social, recreational and leisure needs undermined the direct reference to such matters in s.2 of the Chronically Sick and Disabled Persons Act 1970 (R v North Yorkshire CC, ex p Hargreaves). Likewise, under the same Act, the failure to consider assistance with holidays, which had not been arranged by the local authority, was unlawful. This was because the 1970 Act explicitly refers to holidays ‘otherwise arranged’ (R v Ealing LBC, ex p Leaman).
In the case of the NHS, simple breach of a statutory duty to provide a service would be difficult to establish, given the vague nature of such duties under the NHS Act 2006. However, establishing a breach of duty to consult according to the obligations imposed by the NHS Act 2006 is more easily achieved (see immediately below).
22.214.171.124 Legitimate expectations and consultation
The courts sometimes consider whether people’s legitimate expectations have been properly observed and respected. Such expectations relate sometimes to a right to be consulted before a service is changed or withdrawn; and less often to a right actually to receive, or to continue to receive, a service. The courts might consider that the demands of fairness are higher when an authority intends to remove an existing benefit, rather than in the case of a ‘bare application for a future benefit’ (R v Devon CC, ex p Baker).
Breaking an explicit promise of a home for life. A health authority made an explicit oral promise to a group of severely disabled people that if they moved into a specialist NHS unit it would be a home for life for them. Some years later it proposed to close the unit. The Court of Appeal found that the breach of this explicit promise was not justified by some overriding public interest; that it constituted an abuse of power by a public body; and that it was a breach of article 8 of the European Convention on Human Rights (R v North and East Devon HA, ex p Coughlan).
The consultation in issue might sometimes be with a voluntary organisation rather than individual service users. Thus, when a local authority decided to withdraw funding from such an organisation, without informing it about the criteria (based on ‘fair access to care guidance’: see 6.11) that it was using to take the decision, the court found the decision to be unfair and unlawful (R(Capenhurst) v Leicester CC). In any case, and more generally, guidance states that if a local authority is going to tighten up its criteria of eligibility for community care services, it must consult (LAC(2002)13; DH 2003g). It must also consult properly by taking account of all the relevant factors; a failure to consider issues raised by the Disability Discrimination Act 1995 rendered unlawful the consultation to restrict community care services to those in ‘critical’ need only (R(Chavda) v Harrow LBC).
In the case of the NHS, legislation imposes explicit obligations on NHS bodies to consult about changes to services (NHS Act 2006, s.244 and regulations, SI 2002/3048). In addition, the NHS has a duty to involve and consult with the public (directly or through representatives) when it is planning provision, developing and considering proposals, and making decisions about the operation of services (NHS Act 2006. s.242). The last few years has seen a spate of cases reaching the courts, with claimants – to some degree successfully – arguing that the NHS has failed to consult properly (R(Morris) Trafford Healthcare NHS Trust).
Even in the context of this statutory duty, the courts still supply on top, from the common law, the key principles of fair consultation. These are that consultation must be undertaken at a time when the proposals are still at a formative stage. Sufficient reasons must be provided for particular proposals so as to permit those consulted to give intelligent consideration and response. Adequate time must be given. The product of consultation must be conscientiously taken into account (R(Fudge) v South West SHA).
In addition, both NHS bodies and local authorities should have regard to a code of practice produced by the Cabinet Office, which emphasises the importance of wide consultation, allowing a minimum of 12 weeks for written consultation, clarity of proposals, and provision of feedback regarding responses received and how they influenced the policy (Cabinet Office 2004, p.4).
Nonetheless, even when such legal challenges are successful, the local authority or NHS body may well simply re-consult – this time, cynically going through the correct legal hoops. If it is sufficiently determined, it will push through the same decision, in which case the judicial review may ultimately serve as a delaying tactic only, rather than a complete block on the local closure or reconfiguration of services. Nonetheless delaying tactics may in some circumstances be more permanently effective, because a year or two on, the NHS body or local authority – typically subject to ever shifting policies and priorities – may anyway have changed tack. And, sometimes local authorities and NHS bodies do actually listen and may re-think their plans.
126.96.36.199 Giving reasons
For the most part in community care and NHS legislation, there is no explicit duty to give reasons; and where there is no statutory obligation, a common law duty cannot be assumed in every context (R v Secretary of State for the Home Department, ex p Doody). However, the courts may still effectively demand reasons if only as evidence that a local authority has reached a lawful decision concerning a person’s needs and how they might be met. If, as already pointed out above, the courts are often exploring not what the final decision has been, but how it has been reached, they will often expect to find an explanation.
Indeed, in judicial review, the courts are generally more interested in how a decision has been reached, rather than in what that decision is. A simple analogy would be with the school teacher of mathematics who points out that most marks will be scored for showing the working out, rather than for the precise answer itself. An absence of reasoning may be taken to equate to an absence of working out. For instance, the Court of Appeal seriously criticised a local authority because ‘judicial review is about process; and in my judgment the process here has been manifestly defective’. This was where the decision to place a ninety-five year old woman in a nursing home had been taken without either considering critically important factors or giving reasons (R(Goldsmith) v Wandsworth LBC).
188.8.131.52 Judicial review applying only to public bodies
Judicial review applies only to what the courts deem to be public bodies. In the context of care home closures, they have ruled that independent care home providers are not subject to judicial review. It therefore follows that a local authority is not subject to judicial review on account of a care home’s actions over which the local authority has no control, nor can the care home itself be subject to a judicial review challenge (R v Servite Houses, ex p Goldsmith; R(Heather) v Leonard Cheshire Foundation). However, legislation now states that in some circumstances an independent care home will be amenable to a human rights challenge – but only when a resident has been placed there by a local authority under ss.21 and 26 of the National Assistance Act 1948 (Health and Social Care Act 2008, s.145: when in force).
5.2.2 JUDICIAL REVIEW: PROCEDURES
A number of rules apply to the bringing of judicial review cases.
184.108.40.206 Permission for judicial review
Unlike other types of legal action (such as negligence actions), permission from a High Court judge is first required to bring a judicial review case (SI 1998/3132, r.54.4). Permission will be generally granted if the judge is satisfied that there is an arguable case.
220.127.116.11 Time limits for judicial review
An application for judicial review must be brought promptly and in any event within three months from the date when the grounds of action arose (SI 1998/3132, r.54.5). However, even within the three-month limit, it is open to a court to deny permission on grounds that the application has not been made promptly.
Because of this time limit and the possible requirement that alternative remedies (such as the local authority or NHS complaints procedure) be attempted first, an application for judicial review could be made but then adjourned until the outcome of a complaint brought under the complaints procedure is known. If this were not done, then it might be too late to make the application.
18.104.22.168 Length of judicial review process
Judicial review cases can take a considerable time (months or over a year) to come to court. However, urgency can be pleaded, in which case it might not take more than a few weeks. Similarly, an appeal might be heard quickly in certain circumstances, as occurred in R v Cambridge HA, ex p B (about urgent leukaemia treatment for child) when the High Court and Court of Appeal sat on the same day.
If a case is going to take a long time to come to court, an interim injunction (interim relief) is sometimes possible. This might be in a sufficiently serious case where the court could order that services be provided until the dispute is finally heard and resolved (e.g. R v Staffordshire CC, ex p Farley involving withdrawal of night sitter services by the local authority). Urgency could justify use of judicial review rather than going through the complaints procedure, which can in practice, despite statutory time limits, be drawn out and ineffective.
22.214.171.124 Standing and status of applicant
The applicant or claimant in a judicial review case must have a ‘sufficient interest’ in the case (Supreme Court Act 1981, s.31). For example, service users themselves or carers affected by a decision clearly have such an interest. Sometimes established advisory organisations, representing particular groups of people, will also be recognised by the courts (see e.g. R v Sefton MBC, ex p Help the Aged; R v Gloucestershire CC, ex p RADAR; R v Newham LBC, ex p Medical Foundation for the Care of Victims of Torture). In such cases, voluntary organisations may play a useful role in highlighting matters of public interest. Even when the applicant does have sufficient interest, the courts do not welcome intemperate allegations:
Confrontational claimants. A father had, without evidence, alleged unlawful withdrawal of free treatment, wilful aggravation of such breaches of duty by ‘illegal public office record fabrication’ and ‘scurrilous traducing distributed defamation’ by the local authority and PCT-in respect of his daughter’s treatment. The court understood why the local authority and NHS primary care trust (PCT) had lost patience with this father of a 16-year-old girl. It accepted that ‘public servants should not have to put up with such behaviour’. However, the local authority and PCT still had to consider the daughter’s needs – it was not her fault her father behaved as he did – but this would require a less confrontational approach from the father (R(SH) v Camden LBC).
5.2.3 JUDICIAL REVIEW OR ALTERNATIVE REMEDIES
If the courts believe that there are appropriate ‘alternative remedies’, then they might insist that those remedies be used first, before judicial review can be applied for. The obvious alternative remedies in the community care field are the social services and NHS complaints procedures, and the powers of the Secretary of State to declare local authorities or NHS bodies in default of their duties. However, there are sometimes reasons why the courts might not insist on such alternative remedies.
126.96.36.199 Judicial review as appropriate remedy
As far as complaints procedures go, service users could argue that a hearing before a panel of non-lawyers without legal representation is inadequate to deal with questions of law. For instance, in a case concerning delay in providing community care services, the court ruled that it would not have been ‘convenient, expeditious or effective’ for the applicant to argue points of law before a non-qualified body, namely the complaints review panel (R v Sutton LBC, ex p Tucker).
Likewise, where the complaints procedure could consider only procedural matters, but not substantially deal with the issue in question – because no investigating officer could substitute his decision for that of the NHS trust involved – the court accepted that judicial review was appropriate. The complaints procedure would not be an effective mechanism (R(Rodri- guez-Bannister) v Somerset Partnership NHS and Social Care Trust).
Indeed, in a case about the closure of care homes, the court stated that the issue was a question of law in a developing field. It was therefore for the court, not the local authority (through the complaints procedure) or the Secretary of State, to decide it (R v Devon CC, ex p Baker).
188.8.131.52 Judicial review not appropriate remedy
If, in the view of the courts, questions of law are absent, then the complaints procedure might be more appropriate (R v Lambeth LBC, ex p A about rehousing for child and family; and R v Birmingham CC, ex p A about delay in providing a placement for a child). The courts might view the complaints procedure as more effective and quicker than judicial review, and as able to get to the heart of the matter and the facts (R v Kingston upon Thames, ex p T: a child care case).
In an asylum seeker case concerning place and choice of accommodation, the default powers of the Secretary of State were regarded as more appropriate than judicial review (R v Westminster CC, ex p P). Moreover, some of the community care disputes that have reached the law courts have involved complex problems, which might simply not be amenable to judicial resolution, since they are ‘beyond the competence of courts of law’ (R v Islington LBC, ex p Rixon):
Heavy obligation to avoid litigation. In one case, the Court of Appeal was critical of the fact that a dispute – concerning a care home closure and the adequacy of the assessments of the residents concerned – had resulted in so much litigation. Instead the complaints procedure should have been used; indeed the court declined to decide the matter. The lawyers were under a ‘heavy obligation’ to resort to litigation only if it was really unavoidable (R(Cowl) v Plymouth CC).
Using the courts as a last resort. When a care home was being converted into supported housing, the court stated that the dispute about what was in a care plan was a matter for the complaints procedure; and failure to follow the Secretary of State’s guidance should first of all involve reference to the Secretary of State. The courts should be used as a last resort (R(Lloyd) v Barking and Dagenham LBC, CA).
Disputed assessment: complaints procedure obvious procedure. When a dispute arose about the assessment of a disabled woman’s needs, what was required to meet them, and whether the occupational therapist’s assessment had been taken account of, the Court of Appeal emphasised that in judicial review cases, it would not step in lightly to challenge the judgement and discretion of a local authority involved in an assessment. It pointed the local authority complaints procedure as the obvious way to challenge such an assessment (R(Ireneschild) v Lambeth LBC).
Failure to consult about an NHS independent sector treatment centre (ISTC): danger of misusing public law. When an NHS primary care trust (PCT) unlawfully failed to consult about a new treatment centre run by the private sector, the court nonetheless seemed to deplore the work and resources that had gone into the case-pointing out that public law could fall into disrepute if it is misused (R(Fudge) v South West SHA).
Sometimes the courts might explicitly criticise the lawyers in the case, suggesting that there might have been no need for the case to be brought:
Fallacious ground for bringing litigation. The court stated that the case had been argued eloquently but on the fallacious contention that promises of a home for life had been made to the residents of NHS premises for mentally disordered people;and that this contention had proceeded more on the legal construction of the lawyer involved than on any evidential foundation (R v Brent, Kensington and Chelsea and Westminster NHS Trust, ex p C).
5.2.4 JUDICIAL REVIEW REMEDIES AVAILABLE
The court has discretion, not an explicit obligation, to award a remedy in judicial review (Supreme Court Act 1981, s.31). The court can grant a:
•quashing order: overturning a decision and ordering the authority to take the decision again (formerly known as certiorari)
•mandatory order: obliging an authority to take a positive action (formerly known as mandamus)
•injunction: similar to a mandatory order but in an interim form until the full hearing and resolution of the dispute – and obliging an authority to do or not to do something (e.g. not withdrawing services)
•prohibiting order: forbidding an authority from doing something inconsistent with its legal powers (formerly known as prohibition)
•declaration: that makes a statement about rights, remedies and the general legal position of the parties (formerly known as declaration). It is effective in that public bodies would act in accordance with a declaration (Supreme Court Act 1981, ss.29-33; SI 1998/3132, s.54.2-54.3).
However, the discretion to grant a remedy means that the court does not have to do so, even if the claimant has ‘won’ the judicial review case in principle. For example, in one case, a judge found himself unable to do more than suggest a declaration that the local authority was ‘quite wrong’ when it had not acted in accordance with the law (the CSDPA 1970) in refusing nearly two years previously to consider assisting a person with a holiday (R v Ealing LBC, ex p Leaman). Likewise, when a primary care trust had failed to consult about an independent sector treatment sector, the court ordered no remedy: what was done could not now be undone (R(Fudge) v South West SHA).
5.2.5 PRACTICAL EFFECTS OF JUDICIAL REVIEW
First, when cases go to a full hearing, the decisions of the courts set precedents for the future and have ramifications far beyond the particular applicant or applicants in the case. However, precedents can be sidestepped by, for instance, the courts ‘distinguishing’ a later from a previously decided case, and so avoiding the precedent set by the earlier case. This seemed to occur in R v East Sussex CC, ex p Tandy (about resources in education decisions) in which the House of Lords explained away, without overruling, their earlier decision in R v Gloucestershire CC, ex p Barry (about resources in community care). This enabled the court to come to a different conclusion in the later case.
Second, even the threat of judicial review might be effective in resolving a dispute. For instance, if leave (permission) to proceed to a full hearing is given by a judge, then the public body against which the case is being brought will be aware that the case is an arguable one and might be tempted to settle the dispute before it goes further. Authorities might wish to avoid (a) adverse publicity; (b) high legal costs; and (c) the danger of losing the case and the setting of an unwanted, expensive precedent – which might apply to many other service users in a similar position to the applicant. For example, in 2008, Sunderland Primary Care Trust decided to back down, before a full hearing, on the issue of whether it was empowered, as an NHS body, to make direct payments (Booler 2008).
184.108.40.206 Uncertainty of judicial review
The degree to which the courts have brought certainty to community care law is in doubt. Some questions they answer clearly, some not; whilst some are never considered at all if they don’t happen to get to court. Even when particular questions are answered, with uncertainty replaced with certainty and perhaps an escape route from potential legal obligations closed off to local authorities, the latter will immediately seek out further uncertainties and alternative escape routes.
Thus, judicial decisions are made on a piecemeal basis, are dependent on which disputes happen to reach them in the first place, and are neither predictable nor consistent. In some cases the courts appear to wish to avoid getting enmired in the detail of community care assessments by local authorities (R(Ireneschild) v Lambeth LBC).