28 July 2017

The risk of litigation

The problems in meeting community care need are profound, and have taken centre stage in the General Election debates. The speed at which Government revised its plans following the publication of the Conservative Party’s election manifesto demonstrates the scale of the underlying problems.

The Institute of Fiscal Studies analysed official data on local authority social care spending last April. Its report showed that one in ten councils have cut adult social care spending by more than 25%. Spending fell by most on average in London (18%) and metropolitan districts (16%) covering urban areas like Greater Manchester, Merseyside and Tyneside. Cuts were, generally, larger in the north of England than the south. Cuts were also larger, on average, in areas that in 2009–10 spent more on adult social care; had higher assessed spending needs; and were more dependent on central government grants.

The report demonstrated significant variation in councils’ social care spending across the country. Spending was less than about £325 per adult resident in a tenth of council areas, but more than about £445 per adult resident in another tenth of council areas in 2015–16, i.e. a difference of more than a third.

Although there are inaccuracies in collating figures, different local authorities are likely to make different trade-offs between spending on adult social care and other services, and different overall budgets (from council tax, business rates, and grants) from which to fund their service spending. But it is difficult to tell whether and to what extent these fundamental problems will expose local government to more judicial review cases.

Inevitably, the strains on local government finance draw more authorities into litigation. The drive to meet statutory duties with over stretched resources leads local authorities to look for assistance from other sources of funding. Cases brought against central government are difficult, as the recent rejection in R(Liverpool City Council) v Secretary of State for Health [2017] EWHC 986 (Admin) shows. Four local authorities brought judicial review of the Secretary of State for Health's failure to secure sufficient funding to provide deprivation of liberty safeguards under the Mental Capacity Act 2005 regime resulting from the Supreme Court decision in Cheshire West [2014] AC 896, but that claim was rejected.

Local government is naturally cautious about embarking on judicial review proceedings against other local authorities, reflecting concerns about the court’s reaction to litigation between public bodies. So judicial review cases tend to be a last resort affecting issues of principle. One such example is the dispute in R(Cornwall Council) v Somerset CC [2016] AC 137 concerning the meaning of "ordinary residence" in s 24 of the National Assistance Act 1948 to establish which local authority was responsible for providing ongoing support and accommodation when a severely incapacitated person reached 18 years of age.

More surprising is the failure of local authorities to scrutinise the reluctance of many national health service bodies to meet the legal responsibilities, to which they appear to be subject. The scope for local government to secure additional funding from health bodies is significant but largely untested. An interesting example of its potential is the Forge Care Homes litigation where local health boards are arguing about the funded nursing care rate they would pay for care home residents. Judgment by the Supreme Court is now awaited.

By contrast, the community care cases brought against local authorities are in decline, reflecting legal aid changes or the readiness of local authorities to settle cases. According to the online service BAILLI, since January 2016 (), only four cases have proceeded to trial, although the claimant has succeeded in them. A v Enfield LBC [2016] EWHC 567 (Admin) and R(BC) v Birmingham CC [2016] EWHC 3156 (Admin) both concerned the Children Act 1989 and R(GS) v Camden [2016] EWHC 1762 (Admin) and R(Davey) v Oxfordshire CC [2017] EWHC 354 (Admin) both concerned the Care Act. Whether this remains the position in a world of tightening resources is anyone’s guess.

Fees paid by local authorities to private sector care providers were frequently challenged by judicial review proceedings about five years ago. But the approach taken by Court of Appeal in R(Members of the Committee of Care North East Northumberland) [2013] EWCA Civ 1740 effectively ended this, as Mayfield Care Ltd v St Helens MBC [2015] EWHC 1057 (Admin) indicates.

The impact of the community care crisis on local government is, therefore, difficult to assess. Financial resources for community care provision will certainly diminish. But whether this will result in more litigation for local authorities is much harder to predict.

This feature first appeared in Local Government News magazine. Click here to register for your free copy.

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