A council found by an employment tribunal to have racially discriminated against a social worker has lodged a second challenge to the decision after losing its initial appeal.

Leicester City Council has sought permission to appeal to the Court of Appeal after the Employment Appeal Tribunal (EAT) last month rejected its challenge against a ruling that it had discriminated against Bindu Parmar.

In January 2023, an employment tribunal ruled that Parmar, who is of Indian origin, had been racially discriminated against in relation to a disciplinary investigation the authority took against her in January 2021, when it also temporarily suspended her from her head of service role.

This was triggered by a complaint against Parmar by a manager within another service. This included claims that Parmar had victimised an agency worker, who then reported to the other manager, including by suggesting his decision making would be subject to additional oversight.

‘Nothing of substance’ to disciplinary investigation

Though the investigation against Parmar was initiated by her line manager, director of adult social care and safeguarding Ruth Lake, it was subsequently transferred to another director, who found, in May 2021 that Parmar had no case to answer.

The tribunal judged that there was “nothing of substance to start a disciplinary investigation” against Parmar. It said that Lake would have been aware of this “because the wording of the allegations calling Mrs Parmar to an investigation did not set out any identifiable acts of misconduct”.

Also, the agency worker Parmar was accused of victimising was not interviewed as part of the investigation despite his alleged victimisation being the trigger for it.

No action taken against white staff in comparable circumstances

Furthermore, the tribunal found that, in a number of comparable situations, Lake, did not take disciplinary action against white staff. These included:

• Another head of service admitting that she had behaved inappropriately by swearing audibly in an open-plan office at the end of a phone conversation with Lake. Lake subsequently discussed this informally with the head of service and took no further action.
• The same head of service triggering a collective grievance by team leaders in Parmar’s locality west service, by sending an email late on a Friday afternoon saying that her service would be redirecting work to locality west the following week, without her having the authority to do this. No disciplinary action against the head of service resulted from this.
• A team leader accusing a senior social work practitioner of publicly humiliating them in a training session, and in return being told that the tone of her email was unacceptable. Lake decided mediation between the two was the best course of action.

At the time of the tribunal, the only other member of staff of a comparable grade to Parmar whom Lake had taken disciplinary action against was also of Asian origin

Reversing the burden of proof

From these facts, an inference could be drawn that the council had discriminated against Parmar, the tribunal found.

As a result, as provided for by section 136 of the Equality Act 2010, it transferred the burden of proof from the claimant (Parmar) to the respondent (Leicester). This meant the council was required to prove on the balance of probabilities that it had not discriminated against her, which the tribunal concluded it had failed to do in relation to:

• Transferring Parmar from her role as head of service and starting a disciplinary investigation against her in January 2021.
• Causing her to attend two disciplinary meetings only to be told that she had no case to answer.
• Not considering lesser or more proportionate means of addressing alleged work or conduct issues concerning Parmar.

11 grounds of appeal dismissed

In its appeal to the EAT, the council lodged 11 grounds in relation to which it claimed that the tribunal had been wrong to have reversed the burden of proof and found that it had discriminated against Parmar.

This included that the tribunal had wrongly reversed the burden of proof based on a “mere difference” in the way the council had treated Parmar and other, white, staff, respectively.

However, in its judgment last month, the EAT rejected all 11 grounds.

In relation to ground 2, the EAT concluded: “A number of employees of different race to the claimant have not been subject of formal disciplinary proceedings in circumstances similar to those in which the claimant was.

“The similarity of the circumstances, and the fact that a number of employees of different race have been treated more favourably, obviously establishes more than a mere difference of treatment and status.

“If what the employment tribunal found is not evidence that could support a claim of race discrimination it is hard to imagine what is.”

Council ‘disappointed by judgment’

Directly following the judgment, a Leicester City Council spokesperson said: “We are very disappointed and do not agree with the judgment in this case. We are therefore considering an appeal.  In view of this, it would not be appropriate for us to comment further at this time.”

It has now lodged that appeal with the Court of Appeal, which will now decide whether to grant the authority permission to have its case heard.

Parmar worked for Leicestershire County Council from 1989-97, joining Leicester when it took over responsibility for social services in the city from the county authority in 1997 and then working there until 2022, when she was dismissed. She is bringing a claim of unfair dismissal against the authority, which is expected to be heard later this year.

‘It feels like they don’t want to change’

Bindu Parmar

“This has been a very difficult time for both me and my family,” she said. “I loved my job, and I had dedicated a significant portion of my life to the council.

“In return, I was subjected to an investigation that was dragged on and on, despite no evidence to suggest my behaviour had been inappropriate or that I had behaved negatively towards my colleagues.

“At no point were the actions of my line manager called into question, and no wider internal investigation took place to respond to my own allegations of racial discrimination.

“Even after an employment tribunal ruled in my favour, Leicester City Council put every effort into appealing the decision.”

She added: “It just feels like they don’t want to change and don’t want to learn any lessons.”

Social Work England carried out a “serious abuse of its power as a regulatory body” in allowing its fitness to practise (FTP) processes to be “subverted to punish and suppress” a practitioner’s protected gender critical beliefs.

That was the damning verdict of an employment tribunal in a judgment issued this week.

The ruling was to determine remedies to compensate social worker Rachel Meade for the harassment she received at the hands of both the regulator and her employer, Westminster City Council, through disciplinary and FTP processes related to her beliefs.

The tribunal ordered the two organisations to jointly pay Meade £40,000 for injury to her feelings, as well as £5,000 in aggravated damages, which are imposed when an act of discrimination has been carried out in a “high-handed, malicious, insulting or oppressive” way, it said.

Exemplary damages imposed on regulator

However, it then took the rare step of imposing exemplary damages of £5,000 on Social Work England. These are designed to “punish conduct that is oppressive, arbitrary or unconstitutional” and are “reserved for the most serious abuses of governmental power”, said the tribunal.

The panel of one judge and two lay members said that in its FTP process, Social Work England had taken “a pre-ordained view” that Meade’s beliefs were “unacceptable” and an “an institutional view to favour one side of the debate” on gender – that which supported gender self-identification.

In response, the regulator said it took the ruling “extremely seriously” and had “already started implementing [its] learning from this case”.

Facebook posts

The case concerned 70 posts that Meade made on her private Facebook account that prompted a complaint to the regulator from a fellow social worker.

They included links to a petition calling for male athletes not to compete in women’s sports, to a petition calling for female only spaces and to a satirical post which stated:

“Boys that identify as girls to go to Girl Guides. Girls that identify as boys to go to Boy Scouts. Men that identify as paedophile go to either.”

Both Social Work England and Westminster contended this post – referred to as the Girl Guides/Boy Scouts post in the original judgment – conflated transgenderism with paedophilia.

Fitness to practise and disciplinary cases

Following an investigation, Social Work England found there was a realistic prospect that Meade’s fitness to practise was impaired, with its case examiners’ report saying she had engaged in a pattern of discriminatory behaviour over an extended period.

It then agreed with her that she should receive a one-year warning, though Meade later rescinded her consent to this, meaning the warning was removed.

The regulator later received advice that there was no realistic prospect of a determination of impairment and so applied for Meade’s case to be discontinued. This was then agreed by an FTP panel.

Following Social Work England’s original decision, Westminster suspended Meade on gross misconduct charges in July 2021, pending an investigation under its disciplinary code.

The suspension was not lifted until nearly a year later, and, in the meantime, she received a letter from her employer suggesting that she may pose a risk to vulnerable clients if she returned to work. After she did return, following a disciplinary hearing, Westminster placed Meade on a 24-month final written warning, with the risk of dismissal for similar further actions.

However, after Social Work England ended its fitness to practise case, Westminster removed the written warning from her record.

What the tribunal ruled

In its original judgment, tribunal found that none of the posts could reasonably be regarded as offensive or inciting hatred. All fell within Meade’s protected rights to freedom of thought and expression, under Articles 9 and 10 of the European Convention on Human Rights.

For example, it said the Girl Guides/Boy Scouts constituted “a reasonable satire” and addressed a “legitimate safeguarding concern that some transwomen, retaining male bodies, could exploit their position to have access to young and vulnerable girls”.

The tribunal concluded that Westminster’s disciplinary process constituted harassment, on the grounds that the council had taken the view that in the expression of her protected gender critical beliefs, Meade “had behaved in a manner which warranted a suspension and a disciplinary process”.

In relation to Social Work England, the tribunal concluded that its “prolonged investigation” related to Meade’s protected beliefs and “created an intimidating, hostile and offensive environment for her” and, as such, constituted harassment.

Aggravated damages

In its remedy judgment, the tribunal said £40,000 was an appropriate sum for the two organisations to pay Meade in compensation for the injury she had suffered.

In imposing aggravated damages on Westminster, it referred to the council having contended that Meade posed a risk to vulnerable service users as “highly insulting and upsetting to her as a long serving social worker with an impeccable reputation”.

In relation to Social Work England, the tribunal said that its reformatted statement of the case against Meade, in July 2022, had been “insulting and oppressive” and “sought to demonstrate the claimant’s culpability”.

It also found that both organisations “in the conduct of the respective procedures demonstrated considerable animosity against the claimant on account of her gender critical beliefs”.

‘A serious abuse of power’

In imposing exemplary damages on Social Work England alone, the tribunal said that its actions “constituted a serious abuse of its power as a regulatory body”.

It had “allowed its processes to be subverted to punish and suppress the claimant’s lawful political speech, and to do so on grounds of her protected beliefs” and that, furthermore, it had “a pre-ordained view as to the claimant’s beliefs being unacceptable”.

The tribunal also criticised Social Work England for “its failure to offer any form of apology” to Meade following the original judgment, and said it had “demonstrated an unwillingness to accept that its actions were unacceptable and caused [Meade] considerable distress”.

As well as the damages, the tribunal recommended that Westminster, within six months, ensure that all of its managers and human resources staff receive training in freedom of expression and protected beliefs, including the implications of the Forstater judgment (see box above). The details of this should be shared with Meade, it said.

It recommended the same training in respect of Social Work England’s fitness to practise triage, investigation and case examiner staff, adding: “We consider that this is appropriate given the deficiencies in the process, we have found to have existed in the liability judgment.”

‘We take this case extremely seriously’

Colum Conway, chief executive, Social Work England

In its response to the judgment, Social Work England chief executive Colum Conway said: “As the national regulator for the social work profession we take this case extremely seriously. We want to reiterate again how we recognise this has been a particularly difficult case for Rachel Meade and all others involved.

“Gender critical views, namely the belief that sex is immutable, are a philosophical belief protected under the Equality Act 2010. We have already started implementing our learning from this case.”

He added: “We have already developed internal guidance for our fitness to practise team. The guidance considers concerns raised to us on the use of social media by social workers. In addition, we are in the process of updating and delivering training on the drafting of regulatory concerns, have started providing case law updates and implemented amendments to our regulations on the review of case examiner decisions.”

He said that the regulator would deliver training to its triage, investigation and case examiner teams on the Equality Act and the Human Rights Act, their impact on regulatory process and how to appropriately factor this into decision making. This would include training on freedom of expression and protected characteristics and would be delivered by an external legal trainer within two months.

Conway added: “While we remain committed to learning from this case and implementing next steps, we are still considering the remedy judgment and our options.”

The Professional Standards Authority, which oversees Social Work England, said, in a statement: “Through our performance review process, (in which we assess regulators against the Standards of Good Regulation), we will monitor how Social Work England responds to the employment tribunal judgment and its recommendation. Social Work England’s performance review period runs from January to December and we aim to report on this by the end of March each year.”

‘A huge relief that it’s finally over’

Rachel Meade

In response to the remedy judgment, Meade said: “It’s a huge relief that it’s finally over and that the [employment tribunal] awarded significant amount of compensation to reflect the serious nature of the harassment I experienced at the hands of my professional regulator and employer just for expressing legitimate beliefs and concerns.”

A Westminster City Council spokesperson said: “We have received the findings of the remedy hearing and will need to take a little time to digest before responding more fully.

“We have apologised to Rachel Meade and the points which emerged during the tribunal and remedy hearing are an important and helpful guide in clarifying what is acknowledged to be a rapidly evolving area of employment law.”

By Tim Spencer-Lane

In Rachel Meade v Westminster City Council and Social Work England (2200179/2022 and 2211483/2022), a social worker won multiple claims for harassment, on account of beliefs protected in law, against her employer and the regulator.

The claimant, Rachel Meade, is a qualified social worker in adult services, who started working at Westminster City Council in 2001.

Ms Meade described herself as feminist and holding gender critical views, which included the belief that sex is immutable and not to be confused with gender identity.

The complaint to Social Work England

The case focused on Ms Meade’s Facebook account, which had been set to private and included around 40 friends, including some work colleagues.

A social worker, who was a Facebook friend of the claimant, made a complaint to Social Work England about what was alleged to be the claimant’s transphobic comments on her Facebook account.

He also alleged that she had signed petitions published by organisations known to harass the trans community and donated money to causes which seek to erode the right of trans people.

Regulator begins investigation

Social Work England begun an investigation in November 2020. The case examiners focused on 70 posts, which included links to a petition calling for male athletes not to compete in women’s sports, to a petition calling for female only spaces and to a satirical post which stated:

“Boys that identify as girls to go to Girl Guides. Girls that identify as boys to go to Boy Scouts. Men that identify as paedophile go to either.”

Both Social Work England and Westminster contended this post – referred to as the Girl Guides/Boy Scouts post in the judgment – conflated transgenderism with paedophilia.

Social work’s initial response to complaint

In her response to the complaint, Ms Meade acknowledged that she had been “naively unaware that any posts she had shared or liked, any petitions she had signed, or any organisations to whom she had donated, were discriminatory or offensive. She said that she had not fully read or analysed the content some of the articles or links before posting. She acknowledged showing a lack of judgement in her use of social media.”

She also removed the relevant posts and unfriended any organisations or friends that may be seen as being critical towards minority groups. She then attended training on working with gender diverse and trans people.

Regulator’s sanction

Social Work England concluded that there was a realistic prospect that Ms Meade’s fitness to practise was impaired, with its case examiners’ report saying she had engaged in a pattern of discriminatory behaviour over an extended period.

However,  it said it would not be in the public interest to proceed to a hearing. Instead, the appropriate sanction was a one-year warning.

In particular it was noted there was no evidence that the claimant had acted in a transphobic manner whilst at work. Ms Meade initially agreed to this disposal.

Suspension from work

Westminster was informed of this outcome and suspended her on gross misconduct charges in July 2021, pending an investigation under its disciplinary code.

The suspension was not lifted until nearly a year later following a disciplinary hearing, after which Westminster placed Ms Meade on a 24-month final written warning, with the risk of dismissal for similar further actions.

Ms Meade appealed the decision, saying the sanction was excessive, oppressive and an act of unlawful discrimination, harassment and victimisation.

Request for regulator to reconsider

In the meantime, she had asked  the regulator to reconsider its decision. She stated that there was new evidence to refute the allegations made and which demonstrated that she had not acted in a discriminatory manner.

With Ms Meade having rescinded her consent to the accepted disposal, Social Work England was required to remove the warning from her registration record, in January 2022.

It initially said the matter would be referred to a hearing to determine whether her fitness to practise was impaired.

Fitness to practise case ended

However, it later received advice that there was no realistic prospect of a determination of impairment and so applied for the case to be discontinued.

This was agreed, in October 2022, by a fitness to practise panel, which found that the full content of the posts “did not contain slurs, or profane language, did not target individuals and did not incite violence, harassment or other concerning or illegal activities”.

Further, it found that the fact that much of the material in the posts was reposted from mainstream media sources, which it considered undermined the suggestion that they could cause offence or undermine public confidence in the profession.

Written warning removed

A month later, after hearing her appeal against her written warning, Westminster removed this from Ms Meade’s record.

She then issued claims for harassment and direct discrimination against Social Work England and her employer.

Decision of the employment tribunal

In Ms Meade’s case, the tribunal found that none of the posts could reasonably be regarded as offensive or inciting hatred.

All fell within her protected rights to freedom of thought and expression, under Articles 9 and 10, and none aimed at the destruction of any rights or freedoms, and so were not covered by Article 17.

Whilst some people may be offended, the tribunal noted that freedom of speech does involve the right to cause offence. It also considered it significant that many of the posts did not constitute the claimant articulating her own views, but rather forwarding links to articles or comments on television programmes pertaining to the gender critical debate.

The tribunal also felt that the posts were not outside the reasonable bounds of the legitimate manifestation of the claimant’s beliefs.

For example, it rejected the claim that the Girl Guides/Boy Scouts post had the effect of equating transgenderism with paedophilia. It concluded this constituted “a reasonable satire” and addressed a “legitimate safeguarding concern that some transwomen, retaining male bodies, could exploit their position to have access to young and vulnerable girls”.

Balance between free expression and interests of offended

The tribunal concluded that Social Work England and Westminster had not struck a fair balance between Ms Meade’s right to freedom of expression and the interests of those offended by her Facebook posts.

The tribunal felt it was significant that it was only one person – the fellow social worker who made the complaint to Social Work England – who had been offended, and there was no evidence that Ms Meade’s views were expressed in the context of her professional duties.

The tribunal found that most of her claims for harassment against the two organisations succeeded, and would have amounted to direct discrimination.

Successful claims against employer

In relation to Westminster, it found that the basis for the disciplinary process was Ms Meade’s protected belief. For example, in its investigation, the authority did not identify posts that went beyond a manifestation of Ms Meade’s protected belief and constituted unacceptable conduct.

It concluded that the disciplinary process, which was of significant duration, constituted harassment, on the grounds that the council had taken the view that in the expression of her protected beliefs, Ms Meade “had behaved in a manner which warranted a suspension and a disciplinary process”.

Successful claims against Social Work England

In relation to Social Work England, the tribunal concluded that its “prolonged investigation” was unwanted, related to Ms Meade’s protected belief and “created an intimidating, hostile and offensive environment for her”. As such, this constituted harassment.

It also found that Ms Meade felt under “significant duress” when she agreed to accept a sanction from Social Work England in July 2021 and feared that if she did not, a fitness to practise hearing would follow, which could lead to a more serious outcome. It concluded that she felt subject to an intimidating and hostile environment, which was also sufficient to constitute harassment.

Whilst the tribunal acknowledged that there are limitations on the right to freedom of speech, and the manifestation of protected beliefs, it did not consider that the threshold was reached in this case.

Social worker’s beliefs ‘considered inherently discriminatory’

The state of mind of both Social Work England and the local authority had been that the beliefs expressed were inherently discriminatory and transphobic and therefore unacceptable.

The approach should have been to accept that the claimant was entitled to her beliefs and the manifestation of them, but that certain posts were unacceptable with the reasons why being clearly and consistently set out. This did not happen.

Focus on wider gender identity debate

At the conclusion of its decision, the tribunal felt it was important to recognise the “high-profile public debate” between those supporting gender self-identification and those with gender critical views, including within and between political parties.

It was described as “self-evident” that there was no settled societal, political or legislative position regarding the rights of those seeking gender self-identification.

The tribunal went on to say that the views of the claimant were “not extreme” but rather “represented her expressing her opinion in an ongoing public debate.”

The fact that the debate was often vociferous, and on occasion toxic, did not mean that the right to freedom of expression in a democratic society should be restricted. The analogy was given of the Brexit debates.

Social worker’s views ‘could not be viewed as transphobic’

The tribunal also disagreed that the claimant’s views were the equivalent to an employee/social worker espousing racially discriminatory or homophobic views.

It stated that the claimant’s opinions could not “sensibly” be viewed as being transphobic, but rather her “expressing an opinion contrary to the interpretation of legislation, or perhaps more accurately the amendment to existing legislation, advocated for by trans lobbying groups to include, but not limited to, Stonewall”.

Remedy

At a separate remedy hearing, Ms Meade was awarded over £58,000 in damages from Westminster City Council and Social Work England  for discrimination relating to her gender critical beliefs.

This was the first time a regulator has been ordered to pay exemplary damages because of the manner in which it has carried out its regulatory function.

Tim Spencer-Lane is a lawyer specialising in social care, mental health and mental capacity law. He is also legal editor of Community Care Inform.

Responses to the judgment

Rachel Meade

Rachel Meade: “It’s a huge relief to be so completely vindicated after all this time. It has been a horrendous experience. This ruling makes it clear that I was entitled to contribute to the important public debate on sex and gender. I hope it will make it easier for other regulated professionals to speak up without threats to their career and reputation.”

Westminster City Council: “We apologise to Rachel Meade for the way she has been treated and the upset that has been caused. We acknowledge and accept the findings of the tribunal.

“As recent landmark cases have shown and the tribunal noted, the issues and policy making involving gender recognition and rights is a fast-evolving area. We will be carefully studying the points made in the judgement and considering what changes we need to make at Westminster City Council to ensure the best balance we can to support our staff, service users and our partners.”

Social Work England’s chief executive, Colum Conway: “The tribunal made findings in respect of Ms Meade’s claims against Social Work England. Following the judgment, all parties have the opportunity to consider the decision and their options. As such, we do not intend to provide further comment at this time. Any further updates will be published on our website.”

By Tim Spencer-Lane

Determining the ordinary residence of a service user is sometimes a highly contested matter. This is mainly because ordinary residence will normally determine which local authority is responsible for arranging and funding a person’s care plan.

Under section 117 of the Mental Health Act 1983 (MHA) there is the added ingredient that the person cannot be charged for services and therefore the costs for the relevant local authority are often higher.

This guide provides a brief overview of how to establish the ordinary residence of those entitled to “aftercare” services under section 117.

It takes into account the decision of the Supreme Court in R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31.

What does section 117 say?

Section 117 of the MHA is a duty to provide aftercare services to people who have been detained under sections 3, 37, 45A, 47 or 48 of the MHA and who then cease to be detained and leave hospital.

The duty is placed on health authorities and local social services authorities in whose area the person concerned was “ordinarily resident” immediately before being detained (section 117(3)).

Section 117(4) provides that disputes between local social services authorities in England about a person’s ordinary residence under section 117 may be referred to and determined by the secretary of state for health and social care.

A local social services authority can also request a review of a determination by the secretary of state.

How to determine ordinary residence

There is no statutory definition of ordinary residence. Its meaning and the principles for determining where a person is ordinarily resident have been developed through case law.

The leading authority is R v Barnet LBC ex p Shah [1983] 2 AC 309, where Lord Scarman said: “…‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration”.

This is known as the ‘Shah test’. Chapter 19 of the care and support statutory guidance, under the Care Act 2014, explains how this test should be applied.

In most cases, working out a person’s ordinary residence will be straightforward.

However, difficulties arise, for example, when applying the Shah test to determine the ordinary residence of a person who lacks capacity to decide for themselves where to live.

According to the care and support statutory guidance, local authorities should adopt the Shah approach, but place no regard to the fact that the adult, by reason of their lack of capacity, cannot be expected to be living there voluntarily.

This involves considering all the facts, such as the place of the person’s physical presence, their purpose for living there, the person’s connection with the area, their duration of residence there and the person’s views, wishes and feelings (insofar as these are ascertainable and relevant) to establish whether the purpose of the residence has a sufficient degree of continuity to be described as settled, whether of long or short duration (paragraph 19.32).

When is responsibility for section 117 fixed?

As described above, under section 117, ordinary residence is determined by where the person was living “immediately before” they were detained under the MHA. So, to provide a straightforward example:

• If the person was ordinarily resident in local authority A before being detained under section 3 of the MHA, and
• on discharge moves to local authority B,
• then local authority A will remain responsible for the person’s section 117 aftercare.

In effect, local authority A would continue to be responsible for section 117 services even though the person is now living in a different area.

Indeed, local authority A would continue to be responsible for section 117 services even if the person subsequently moved again to a third local authority area.

But what happens if the person is subsequently re-detained for treatment under the MHA?

What happens if the person is detained again?

The Supreme Court, in Worcestershire, confirmed that, in such cases, the section 117 ends when the person is re-detained. When they are discharged, responsibility for the new section 117 duty will lie with the authority in whose area the person was ordinary resident immediately before their most recent detention. So, for example:

• If the person was living in local authority A before being detained under section 3 of the MHA, and
• on discharge moves to local authority B but is subsequently detained again under section 3 of the MHA,
• then local authority B will become responsible for the person’s aftercare.

Therefore, local authority B becomes responsible because at the point in time when the service user was detained on the second occasion they were ordinarily resident in local authority B’s area (even though local authority A had been responsible for their aftercare services).

This interpretation is also confirmed by the care and support statutory guidance for the Care Act (see below).

Do deeming rules apply to section 117?

The so-called ‘deeming rules’ apply for the purposes of the Children Act 1989, the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014.

In very simple terms, they provide that where a person is placed by a local authority into the area of another local authority (for example, in a care home), the person is ‘deemed’ to be ordinarily resident in the placing authority.

• So, if the person living in local authority A was placed into a care home within the area of local authority B,
• then local authority A will remain responsible for the person’s care services.

However, the Supreme Court decision in Worcestershire confirmed that section 117 does not contain any deeming rules.

This interpretation is confirmed by the care and support statutory guidance (see below).

The Care Act statutory guidance

The relevant parts of the care and support statutory guidance on section 117 aftercare are repeated below.

“Although any change in the patient’s ordinary residence after discharge will affect the local authority responsible for their social care services, it will not affect the local authority responsible for commissioning the patient’s section 117 after-care. Under section 117 of the MHA, as amended by the Care Act 2014, if a person is ordinarily resident in local authority area (A) immediately before detention under the 1983 Act, and moves on discharge to local authority area (B) and moves again to local authority area (C), local authority (A) will remain responsible for providing or commissioning their after-care.

“However, if the patient, having become ordinarily resident after discharge in local authority area (B) or (C), is subsequently detained in hospital for treatment again, the local authority in whose area the person was ordinarily resident immediately before their subsequent admission (local authority (B) or (C)) will be responsible for their after-care when they are discharged from hospital.” (paragraph 19.64)

“There are several provisions in the Care Act (section 39(1)-(3) and (5)-(7) and paragraph 2 of Schedule 1) which deem a person to be ordinarily resident in a particular local authority’s area in specified circumstances for the purposes of Part 1 of the Act. These deeming provisions do not apply to section 117 of the 1983 Act, nor have they been incorporated into section 117 of the 1983 Act.” (paragraph 19.67)

When does section 117 end?

The section 117 duty lasts until the health authority and local social services authority are satisfied that the person is no longer in need of such services (section 117(2)).

The MHA code of practice (paragraphs 33.20 to 22.24) sets out that aftercare services should not be withdrawn solely on the grounds that, for example, the patient has been discharged from the care of specialist mental health services or returned to hospital informally or under section 2.

It also states that “fully involving the patient and (if indicated) their carer and/or advocate in the decision-making process will play an important part in the successful ending of aftercare”.

In addition, the Supreme Court decision in Worcestershire confirmed that section 117 automatically ceases if the person concerned is re-detained for treatment for mental disorder under section 3 (or one of the other specified provisions).

The judgment also says that the section 117 duty will end, for example, if the person concerned “were to die or was deported or imprisoned”.

It is not explained why this is considered to be the case, particularly in respect of prisoners who have not yet been made subject to sections 45A, 47 or 48 of the MHA. But the judgment clearly says that such a person ceases to be someone to whom section 117 applies*.

*This section of the guide has been updated.

By Tim Spencer-Lane

The Supreme Court has handed down its long-awaited judgment in R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31.

The issue in this case was which of two local authorities was responsible for providing and paying for “aftercare services” under section 117 of the Mental Health Act 1983 (“MHA”) for a particular individual.

What does section 117 say?

Section 117 places a duty on health authorities and local social services authorities to provide aftercare services for people who have left hospital following compulsory detention for treatment for mental disorder under the MHA (for example, under section 3).

The duty is placed on the authorities in whose area the person concerned was ordinarily resident “immediately before” being detained. The complication in this case – which is common in practice – was that following their first detention, the person was placed in another local authority area and eventually detained for a second time.

Why did the dispute arise?

It had been widely understood that the correct approach in such cases, was to determine the person’s ordinary residence by reference to where they were living immediately before their last detention.

This interpretation is supported by the care and support statutory guidance under the Care Act 2014, issued by the Department of Health and Social Care (DHSC). This sets out that when a person in receipt of section 117 services is moved to new area and detained again under section 3, the new social services authority will become responsible for their aftercare (paragraph 19.64).

However, the DHSC changed its mind and challenged its own guidance. In 2020, it published five decisions which adopted a radically different approach to determining ordinary residence for the purposes of section 117 (one of which was the Worcestershire case).

These determinations stated that the correct approach in such cases was to determine the person’s ordinary residence by reference to where they were living immediately before their first detention.

In addition, the determinations set out that so called “deeming rules”  – which mean that if a person is placed by a council into another local authority’s area, the first authority retains responsibility for their care – should be read into section 117.

The facts of the Worcestershire case

This case involved a woman (“JG”) who had treatment-resistant schizoaffective disorder. She lived in a property in Worcestershire County Council’s area and was detained under section 3 of the MHA.

It was not in dispute that, at that point, JG was ordinarily resident in Worcestershire and therefore it had responsibility for her section 117 aftercare.

She was assessed as lacking capacity to decide where to live. Following consultation with her daughter and others involved in JG’s care, a decision was made that it would be in JG’s best interests for her to reside in a care home close to where her daughter lived, in Swindon Borough Council’s area. This was arranged and funded by Worcestershire.

A year later, JG was detained again under the MHA (initially under section 2, and then under section 3). A dispute arose between Worcestershire and Swindon as to where JG was ordinarily resident immediately before her second detention. The dispute was referred to the secretary of state for health and social care.

Originally, the secretary of state determined that JG was ordinarily resident in Swindon at the time of her second detention and, therefore, it was responsible for her section 117 aftercare. However, this decision was reversed on review. The secretary of state determined that JG had been ordinarily resident in Worcestershire immediately prior to the first detention and this responsibility did not end when she was detained a second time.

Worcestershire successfully challenged this determination in the High Court. The judge ([2021] EWHC 682 (Admin)) found that, following the second discharge, JG had been ordinarily resident in Swindon. However, this decision was overturned by the Court of Appeal ([2021] EWCA Civ 1957). That decision was appealed to the Supreme Court.

The Supreme Court decision

Lord Hamblen and Lord Leggatt gave the judgment (with which all the other members of the court agreed).

When does the section 117 duty cease?

It was not in dispute that, following the first discharge, the duty to provide aftercare services for JG was owed by Worcestershire and that Worcestershire did not at any point take a decision that JG was no longer in need of such services.

But importantly, it was also accepted that Parliament cannot have contemplated that “two parallel duties, owed by two different local authorities, to provide aftercare services for the same individual should exist at the same time”. This would be a recipe for disputes between authorities and risk “logistical chaos”.

Lord Hamblen and Lord Leggatt held that the best explanation of why concurrent duties do not arise was provided by reference to section 117(1). This sets out that the section 117 duty is triggered when a person ceases to be detained and leaves hospital.

Lord Hamblen and Lord Leggatt reasoned that if a person has been re-detained in hospital for treatment, the criteria in section 117(1) are no longer met (ie that individual is no longer a person who has ceased to be detained and has left hospital). Thus, upon such detention an individual ceases to be a “person to whom [section 117] applies”.

The judges argued that this interpretation was grounded in the language and purpose of section 117, especially the very concept of “aftercare”. Section 117 defines the purpose of “aftercare services” as being, “reducing the risk of a deterioration of the person’s mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder)”.

That purpose was only capable of being fulfilled if the person concerned was not currently detained in a hospital for treatment for mental disorder.

It was therefore concluded that the duty to provide aftercare services automatically ceases if and when the person concerned is detained for treatment under the MHA. In this case, therefore, Worcestershire’s duty to provide aftercare services for JG ended upon her second detention. When she was discharged, a new duty to provide aftercare services arose.

Which local authority owed that duty is determined by section 117(3) and depends on where JG was ordinarily resident immediately before the second detention.

Ordinary residence

The secretary of state argued that deeming rules should be read into section 117, based on the Supreme Court decision in R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46.

This held that, when a young person turns 18 and transitions from children’s legislation to adult social care legislation, their ordinary residence will remain with the local authority in whose area they were ordinarily resident immediately before turning 18. This was largely to avoid the “undesirable” and “adverse consequences” of having a hiatus between the relevant legislation.

However, the secretary of state’s argument was rejected by Lord Hamblen and Lord Leggatt. This was because the MHA does not contain deeming rules.. It was also clear that, during the passage of the Care Act 2014, which amended section 117 by adding reference to “ordinary residence”, Parliament had deliberately chosen not to apply deeming rules to section 117.

It was, therefore, concluded that the words “is ordinarily resident” must be given their usual meaning, so that JG was ordinarily resident in Swindon immediately before her second detention. Thus, following the second discharge, Swindon, and not Worcestershire, had the duty to provide aftercare services.

What does the judgment mean for local authorities?

The effect of this judgment is that the law on section 117 and ordinary residence (as set out in the care and support statutory guidance) has not changed.

Ordinary residence should be determined by reference to where the person was living immediately before their last detention. It has also been confirmed that section 117 does not contain deeming rules and ordinary residence should be given its natural meaning.

The DHSC had published a ‘guidance note’ setting out that, pending the outcome of the legal proceedings, it would stay the determination of new ordinary residence disputes which concern section 117 and raise issues similar to those in the Worcestershire case.

These ordinary residence disputes will now need to be determined by the secretary of state in the light of the Supreme Court judgment.

What issues might arise in the future?

It is interesting that Lord Hamblen and Lord Leggatt appear to have argued that any best interests decision to place a person in an area means that the person has voluntarily adopted that residence and is hence ordinarily resident there (paragraph 58 of the judgment).

This is at odds with the care and support statutory guidance, which essentially sets out that a fact-based approach should be adopted to ordinary residence in such cases (see, for example, paragraph 19.32 of the guidance).

Whist the comments of Lord Hamblen and Lord Leggatt appear to have been obiter, which means they do not set a legal precedent,  they could lead to confusion on the ground and generate future legal challenges.

Finally, it should be noted that the government has published a draft bill to amend the MHA, which includes provisions that would insert the deeming rules from the Children Act 1989 and Care Act 2014 into section 117 (clause 39).

Therefore, if the bill is passed, the Supreme Court’s decision may be reversed in the future.

Tim Spencer-Lane is a lawyer specialising in adult social care, mental health and mental capacity, and is legal editor of Community Care Inform.

The Home Office has been housing unaccompanied asylum-seeking children in hotels unlawfully since December 2021, the High Court has ruled.

The court also judged that Kent County Council has acted unlawfully since 2021 in refusing to accept all unaccompanied children into its care when notified of their arrival in the county, in a stinging judgment issued last week.

Following the ruling, the judge, Mr Justice Chamberlain, quashed an unpublished 2021 agreement between the Home Office and Kent allowing the council to look after a capped number of children arriving in the county.

He also ordered the Home Office and Kent to jointly pay court costs – valued at £50,000 – to ECPAT UK. The charity had brought a judicial review claim that Kent had breached its Children Act 1989 duties in not accommodating asylum-seeking children in its area and that the Home Office was housing children without the power to do so outside of an emergency.

Last week’s ruling also considered other issues common to ECPAT’s challenge and separate judicial review claims brought against the Home Office by Kent and Brighton & Hove council, among five authorities with hotels in their areas. Other aspects of the challenges will be considered in subsequent hearings.

Widespread concerns over use of hotels

The ruling follows widespread concerns about the risks to children placed in hotels, in the light of hundreds going missing, a critical inspection report that raised safeguarding issues and doubts over who was responsible for their care and welfare under the Children Act 1989.

This question was resolved in a judgment in June, which found that the local authority where the relevant hotel was located was responsible. However, in its evidence to the latest case, Brighton said it “simply [could not] discharge its statutory duties if the [home secretary] continues to operate this unlawful scheme”, and that the hotel in its area was “unsafe”.

Since the Home Office started using hotels in July 2021, they have housed more than 5,400 children – 32% of whom were under 16 – in them. As of 17 July 2023, 218 children were in hotels, and the Home Office told the court it was anticipating that more needed to be accommodated in the coming days and weeks.

It initiated the hotels policy a month after Kent – in whose area the vast majority of unaccompanied children arrive – announced it would stop taking any into its care, after reaching “breaking point”.

Private agreement between Kent and Home Office

Kent resumed taking unaccompanied children in September 2021, but the court found that this was under the terms of a private agreement with the Home Office, the “Kent protocol” , which set a cap of 466 on the number the authority would be caring for at any given time.

Under the agreement, the Home Office also funded the authority – to the tune of £4.37m in 2021-22 – to set up a “reception and safe care service” (RSCS). This was designed to look after up to 120 children, moved from Home Office hotels, pending their transfer to another council under the National Transfer Scheme (NTS).

The NTS – which, at the time, was voluntary but became mandatory in December 2021 – is designed to even out responsibility for accommodating unaccompanied children by transferring them from councils with numbers exceeding 0.1% of their child population to those below that threshold.

Universal agreement that Kent ‘breached section 20’

Mr Justice Chamberlain found that all parties to the case – including Kent – agreed, correctly ,that the authority had breached its duties under section 20 of the Children Act 1989, by not accommodating all unaccompanied children that the Home Office notified it about.

Section 20 requires councils to accommodate children in need in their areas who are lost, abandoned or without anyone with parental responsibility, and the judge said this duty was “absolute” and applied “irrespective of the resources of the local authority”.

He also found that Kent had chosen to treat some unaccompanied children less favourably than other children based on their immigration status. This violated “a fundamental aspect” of the Children Act 1989, which was that councils’ duties applied “to all children, irrespective of immigration status, on the basis of need alone”.

For the same reason, the judge found the Kent protocol illegal, as it was “premised upon a continuing breach of Kent CC’s duties” and that the responsibility for this unlawfulness lay as much with the home secretary for agreeing it, as with the authority.

Legality of hotel placements

The ruling said that, while the home secretary had no express power in law to accommodate unaccompanied children, she could do so in an emergency, for short periods, to avoid breaches of their rights to life and not to be treated inhumanely, under the European Convention on Human Rights.

However, Mr Justice Chamberlain said the power could not be used “systematically or routinely in circumstances where it is intended, or functions in practice, as a substitute for local authority care”.

He assessed that its use had become routine and systematic by December 2021, when the Home Office amended its NTS protocol to allow for children to be transferred who were “not in the care of a local authority”.

The judge found that the government had other options available to it to avoid a breach of the law, including directing Kent to fulfil its statutory duties under the Children Act or providing more funding to it or other authorities so they could accommodate the children concerned.

The judgment comes in the wake of the passage of the government’s Illegal Migration Act 2023, which legislates for the Home Office to accommodate unaccompanied children; however, as this provision is not yet in force, this was not relevant to the case.

Authority ‘must do utmost to accommodate children’

In its order following the judgment, the court quashed the Kent protocol as of 18 August 2023 and ordered the authority to, immediately, take all possible steps to accommodate unaccompanied children arriving in the county and only refuse this as a “last resort”.

As part of this, the authority must take all possible steps to increase its care capacity, including through reallocating its resources, seeking additional government funding and working with other councils to source placements.

Mr Justice Chamberlain also ordered the Home Office to, immediately, ensure all children in hotels were transferred to a local authority within five days, with the same time limit applying to new arrivals.

Payments resume for councils taking children from hotels

Following the judgment, the Home Office confirmed it had resumed paying local authorities to take children from hotels, as it did from August 2022 to February 2023. when payments were initially set at £6,000 per child, rising to £15,000 from December 2022.

This appears to have helped increased the number of transfers out of hotels, according to Home Office data.

The department has reinstated the £6,000 payment – which applies when a council accepts a child into its care from a hotel within five days of a notification to do so – and said this would apply throughout 2023-24.

Government ‘had no option but to use hotels’

A Home Office spokesperson said: “We have always maintained that the best place for unaccompanied children to be accommodated is within a local authority.

“However, due to the unsustainable rise in illegal Channel crossings, the government has had no option but to accommodate young people in hotels on a temporary basis while placements with local authorities are urgently found.

“In light of today’s judgment, we will continue to work with Kent County Council and local authorities across the UK to ensure suitable local authority placements are provided for unaccompanied children, in line with their duties.”

For Kent, council leader Roger Gough said that the authority accepted the ruling. But he that it would not be able to support new arrivals in Dover while also making sure children in its care remained safe without a “properly functioning NTS”.

Transfer scheme ‘not working’

“Kent has long since argued that other local authorities must accept their fair share of these vulnerable children into their care within the specified timescales and the Home Office must be prepared to use its powers to force recalcitrant local authorities to participate in the Scheme. Sadly, the NTS is currently not operated in such a way to achieve this and this results in a small number of local authorities being overwhelmed and ultimately affecting a whole range of vulnerable children.”

Gough pointed out that the High Court stated that “Kent should not be criticised for refusing to operate an unsafe service” and that it expected the Home Office to work with the coastal authority to return to court with a resolution to the issues with the NTS very soon.

Brighton’s leader Bella Sankey welcomed the judgment, adding: “As a result of this policy, a dozen classrooms of children – including some of the most traumatised and vulnerable children in the world – have gone missing and, sickeningly for us, 50 children are still missing from the hotel used in Brighton and Hove.”

Echoing Gough, she said that home secretary Suella Braverman must now “urgently enforce [the NTS] so that the hotels can be emptied and all local authorities can play their part in safeguarding children”.

‘A child protection scandal’ – charity

Giving its response to the case, ECPAT UK chief executive Patricia Durr said: “This judgment powerfully reaffirms the primacy of the Children Act 1989 and our child welfare statutory framework which does not allow for children to treated differently because of their immigration status.

“It remains a child protection scandal that so many of the most vulnerable children remain missing at risk of significant harm as a consequence of these unlawful actions by the Secretary of State and Kent County Council.”

Association of Directors of Children’s Services John Pearce said councils’ ability to fulfil its duties to accommodate unaccompanied children was “limited by a lack of adequate funding and a national shortage of placements”.

Last month, Pearce criticised the Home Office for treating children it was accommodating as “spontaneous arrivals” into the local authorities in which its hotels were based, placing pressure on the councils’ social work teams in relation to age assessments.

Urging government support to tackle the lack of placements, as well as their increasing cost, he said: “Now is the time for a real step change towards a more sustainable system, one that is child-centred and developed in partnership with local authorities and our partner agencies.”

By Pete Feldon

A recent High Court judgment, which found that a local authority acted unlawfully in deciding how to meet a person’s needs, provides helpful guidance for practitioners on applying the Care Act 2014 and its statutory guidance.

This article examines the importance of the judgment for decision-making about personal budgets and also responding to complaints, and highlights the implications for defensible decision-making and the Care Quality Commission’s new responsibility for assessing how local authorities discharge their Care Act duties.

In P, R (On the Application of) v London Borough of Croydon, P had a range of disabilities, and, in March 2020, aged 25, returned from a specialist college to live with her parents.

She previously received, from Croydon council, a personal budget for 30 hours per week – with the authority having agreed, but not implemented, an increase to 35 hours – along with additional support from the college.

To meet her needs after returning home, an assessor from Croydon determined, in October 2021, that she required 96 hours of care per week and an indicative budget was set at £1,200 per week.

Indicative budget cut by panel

Croydon’s funding panel then considered the assessment and indicative budget but decided the personal budget should be £437.50 per week, which would fund 35 hours.

When P and her family sought to challenge this, they were told that the panel would only reconsider if P and her family agreed to a reassessment. The family then lodged a judicial review, arguing that there was no need for a reassessment as the assessment accurately reflected P’s needs and “there had been no reasonable explanation” of how it was wrong.

The grounds considered by the High Court were that Croydon had:

1. Failed to meet P’s needs.
2. Failed to assess her carers’ needs.
3. Acted unlawfully in calculating her personal budget in that it failed to comply with the statutory guidance under the Care Act 2014.
4. Acted unlawfully in preparing and producing her care and support plan in that it failed to comply with the statutory guidance.

The judge determined that the council had acted unlawfully in relation to grounds 1, 3 and 4, and quashed Croydon’s decision that P’s needs could be met by a 35-hour personal budget. A ruling was not required on ground 2 as Croydon agreed that a carer’s assessment should be carried out.

Failure to meet needs

In relation to ground 1, the court ruled that Croydon’s decision to provide 35 hours was unlawful because “no (or no adequate) reasoning” was ever provided to P or her family to explain the decision.

Croydon’s defence, set out in a witness statement, was that its assessor had wrongly not taken into account the level of support being provided by P’s family.

As per section 18(7) of the Care Act 2014, councils are not under a duty to meet a person’s eligible care and support needs where these are being met by a carer.

However, David Pievsky KC, sitting as a deputy high court judge, said that, while the council was entitled to reject the indicative budget, it needed to set this out in “a reasoned, procedurally fair, and reasonable decision”. As this had not happened, the decision-making process was ruled unlawful.

Damningly, the judge concluded: “The claimant’s family were not even told about the fact of the decision (which appears to have been made at a meeting of the funding panel of the defendant, at which (I was informed) no minutes were taken), let alone the reasons for it.”

Need to provide reasons for decision-making

While the need to provide reasons for decisions about how to meet an eligible person’s needs under section 18 of the Care Act applied generally, the judge said the requirement “was particularly acute in the circumstances of this case”, including because:

• Croydon was “radically departing from a recent recommendation contained in one of its own assessments”, and reasons were likely to be required when a public body decides not to provide something it had previously indicated it would provide.
• The decision to fund only 35 hours per week meant that P’s family would highly likely feel “profound disappointment and would legitimately expect an intelligible explanation for the decision”.
• In its October 2021 assessment, the assessor recorded that P had a “worrying” and “unhealthy” over-reliance on her mother, which needed to be tackled, and that her mother was feeling “overwhelmed” with the pressures of meeting her daughter’s needs.

Failure to comply with statutory guidance

The judge also ruled that the council had unlawfully failed to comply with the Care Act statutory guidance in producing P’s personal budget (ground 3) and her care and support plan (ground 4).

Section 78(1) of the Care Act requires councils to act under the general guidance of the government when exercising relevant functions, and lawyers for both P and Croydon agreed this meant that authorities must comply with the statutory guidance unless they can provide cogent reasons for departing from it. In this case, Croydon provided none, found the judge.

These breaches related to its failures to follow the principle of transparency in setting the personal budget and to involve P and her family in the development of the care and support plan.

As set out in paragraph 11.24 of the guidance, the transparency principle requires “that people fully understand how the personal budget has been calculated, both in the indicative amount and the final personal budget allocation”.

In relation to involvement, the judge referred to paragraph 10.49 of the guidance, which states that the “local authority must also involve the person the plan is intended for, the carer (if there is one), and/or any other person the adult requests to be involved”. It is worth noting here that this is not just a requirement of the guidance but of section 26(3) of the Care Act.

In this case, not only did the council not involve the family, but the family did not know about the care and support plan’s existence until after proceedings in this case had started.

Croydon conceded that it had not complied with the statutory guidance on transparency and involvement but defended itself on the grounds that doing so would not have made a substantial difference to the outcome.

The judge rejected this, stating: “I consider it highly likely that the proper involvement of the claimant and her family would have made a substantial difference to the outcome.”

He added that involvement “was required not only by general principles of fairness in public law, but also by the particular regime created by the 2014 Act”, which was to give people “the kind of autonomy that is associated with their being able to exercise control over day-to-day life.”

Response to complaints

The judge was also critical of Croydon’s initial response to P’s family’s complaint, which was to ask them to set out how the 35 hours would be insufficient to meet P’s needs. The judge said he did not agree that this should be required “in order for a complaint about the lawfulness of the decision to get off the ground”.

David Pievsky KC said that the “burden [or making this case] cannot sensibly be placed on the adult who needs care and support”. And while P had a father who was able to advocate for her, many people who needed care and support would not have access to this.

The judge said that it was for Croydon to make a judgment on the needs that it was under a duty to meet and communicate those intelligibly to P and her family.

Defensible decision-making

Given the comprehensiveness of the judge’s dismissal of the legal arguments put forward by Croydon, it is perhaps surprising that the case was not settled before it came to court. If Croydon had provided an explanation of the panel decision to P and her family, then a major component of the complaint would have been removed.

Apologising for decisions that were not made transparently and without sufficient involvement of P and her family, and taking steps to address these issues, would have perhaps ensured that the decision-making process was “procedurally fair” and possibly “reasoned” – and thus a judicial review may well have been avoided.

However, if Croydon had maintained that it would only pay for 35 hours it is possible that P and her family would view this decision as not being “reasonable” and would seek to challenge it.

Implications for CQC assessment of local authorities

Cases that are brought to judicial review provide valuable insights into how the Care Act is applied as well as establishing case law precedents.

With the advent the Care Quality Commission’s responsibility for assessing how local authorities discharge their duties under the Care Act 2014, such cases may well have implications for the way the CQC evaluates councils’ performance.

In the recently published draft version of the CQC assessment framework, one of the key measures is the extent to which “decisions and outcomes are transparent” in relation to assessing and meeting needs.

It would seem likely that some of the groups the regulator is expected to consult with in gathering evidence, such as advocacy or carers’ organisations, will want to raise cases where there have been concerns about transparency in their locality, and they may well use this judicial review as a benchmark.

The detail and significance of this and other judicial reviews concerning the Care Act are set out in the revised edition of Pete’s book, The Social Worker’s Guide to the Care Act 2014 (Critical Publishing), which is published this month.

A senior adults’ practitioner has lost his bid to stop Social Work England obtaining a family court judgment that found he abused his ex-partner.

The High Court ruled last week that it was right for the regulator to see the family court judgment because the need for public safety outweighed the social worker’s right to respect for his privacy.

The ruling, by Mrs Justice Knowles, comes on the back of longstanding private law proceedings between the social worker and his former partner, from whom he separated in 2015, concerning their daughter, known as Z.

Domestic abuse findings against social worker

In February last year, Judge Farooq Ahmed made a fact-finding judgment that the man:

Some Court of Protection orders for professional reports on people subject to proceedings are “disproportionate, overly burdensome, and wrongly authorised”, mental health leaders have warned.

The court’s vice-president, Mr Justice Hayden, shared feedback from mental health trust directors regarding orders for reports under section 49 of the Mental Capacity Act 2005, in a letter to fellow judges issued last month. This followed a meeting he and senior Court of Protection judge Her Honour Judge Hilder had held with trust directors.

Mr Justice Hayden also stressed to colleagues that orders for section 49 reports should be “clearly focused with tight identification of the issues”, and that reports should not require “extensive analysis”.

Section 49 allows the court to require a local authority or NHS body to produce a report concerning a question relating to the person who is the subject of proceedings (“P”), which must address the issues specified by the court.

While these are sometimes required of councils regarding P’s social circumstances, they are much more often ordered from mental health trusts in relation to the person’s capacity, with psychiatrists often nominated by their employers to produce the report.

Mental health trust concerns

Trusts have raised concerns previously about being required to produce reports for people who are not their patients but happen to live in their catchment areas, thereby requiring more work for the practitioner nominated to write it.

This is despite a practice direction on the use of section 49 stating that one of the factors the court may consider when ordering a report is that the public body in question “has recent knowledge of P; or it is reasonably expected that they have recent knowledge of P; or should have knowledge due to their statutory responsibilities under housing, social and/or health care legislation”.

A study published last year in the BJPsych Bulletin, based on a survey of 104 learning disability psychiatrists, found that two-thirds had been asked to prepare a section 49 report and, of those, half had been asked to provide an opinion outside of their area of subjective expertise.

However, unlike with instructing an independent expert, there is no charge to the court or to any of the parties from ordering such a section 49 report, with the effective costs being borne by the relevant council or trust.

‘Disproportionate and overly burdensome’

This was flagged up by Mr Justice Hayden in his letter.

“There was a strong feeling [among NHS mental health directors] that some of the Section 49 requests are disproportionate, overly burdensome, and wrongly authorised,” he said. “There are obvious reasons (ie costs) why a Section 49 report might be preferred where what is truly required is an independent expert report.”

“Instructions under Section 49 should be clearly focused with tight identification of the issues,” he added. “It should be expected that the reports will be concise and will not require extensive analysis across a wider range of questions than those contemplated in the Practice Direction. Reports requiring that kind of response should be addressed to an independent expert.”

His letter quoted the practice direction in full, highlighting key sections including:

• the reference to the public body knowing P being a factor the court may consider in ordering a report;
• the need for a party to proceedings to, wherever practicable, use their best endeavours to contact the appropriate person at the relevant trust or local authority before making an application for a section 49 report;
• that the report should contain four main sections: the author’s details, P’s details, the evidence considered in compiling the report and the conclusions.

A council wrongly stopped funding family holidays for two disabled brothers by adopting a “restrictive and wrong” intepretation of the Care Act 2014.

That was the verdict of the Court of Appeal in a judgment last week, in which it rejected an appeal brought by Suffolk County Council against a High Court ruling last year that quashed its 2020 decision ending funding for the holidays for the men, known as BG and KG.

The council, which had financed the holidays since 2013 for the bothers, made the decision on the basis that it no longer included holiday travel and accommodation in personal budgets because they did not constitute care and support needs. It also found that the men’s mother, SQ, was meeting all of their eligible needs, so there was no requirement for the council to provide any funding.

However, in  R (BG & KG) v Suffolk County Council [2022], Lady Justice Nicola Davies agreed with the High Court that the decision was based on a “restrictive and incorrect interpretation” of needs under the Care Act.

The ruling came in only the third Care Act case to be considered by the Court of Appeal.

BG, 37, and KG, 38, are both autistic and have learning disabilities and epilepsy; BG is also incontinent and needs support with eating, washing and toileting, while KG has fibromyalgia, causing pain, is incontinent at night and needs support with all aspects of daily living.

Their mother, SQ, is their full-time carer, with support from her husband and two family members. After experiencing abuse at a day centre in the past, BG and KG cannot attend day centres and will not tolerate external carers in the home, meaning all care must be carried out by SQ, with help from the family.

Holiday funding previously approved

In 2011, the council started providing the brothers with direct payments worth between £108 and £150 per week, which it approved for use on family trips, activities and holidays. In 2013, it started providing a “respite budget” – worth £3,000 to each man – specifically to provide for supported holidays.

This funded family holidays to Florida in 2015, 2017 and 2018, which BG and KG enjoyed. In a letter to the council in 2019, a community nurse said they had also provided a break for SQ, as she did not need to carry out chores during the holidays, enabled her to maintain her caring role and had reduced distress for the family.

However, later that year, following an assessment of the brothers, the council concluded that neither holidays nor recreational activities were eligible needs, contrary to the outcome of previous assessments.

End to direct payments

In March 2020, a Suffolk team manager wrote to SQ to say that the council was “no longer including holiday travel & accommodation cost in personal budgets” because a review had “identified that paying customers’ holiday costs (rather then meeting the cost of support that they need to achieve a holiday) is not a Care Act eligible need”.

The manager said that it appeared that SQ was meeting the eligible needs that the brothers had when they were on holiday.

The brothers were subsequently reassessed and, in November 2020, the same team manager wrote to them to say that their direct payments would be ending on the grounds that neither wanted to be cared for by someone outside of the family, which meant no care funding could be provided.

BG and KG challenged the decision successfully in the High Court last year, with Mrs Justice Lang being “unable to find any statutory basis for the restrictive interpretation of needs adopted by the council”.

Care Act goes beyond need to be ‘looked after’

Appealing the decision, Suffolk argued that care and support needs under the Care Act were needs to be “looked after”, drawing on a judge’s comments from the case of  R (Aburas) Southward LBC [2019].  The council said that holidays and recreational activities were not needs to be looked after, as they were universal needs held by everyone.

However, Lady Justice Davies said the concept of “looked-after” needs did not reflect the focus in the Care Act on the “individual nature of the assessment, its recognition of the autonomy of the individual and the tailored and broad nature of the support which can be provided”.

Suffolk’s 2020 assessments had found that BG and KG were unable to achieve eight of the 10 outcomes in the Care Act eligibility regulations, as a result of their impairments, resulting in a significant impact on their wellbeing, meaning they met the eligibility criteria. This included not being able to “[make] use of necessary facilities or services in the local community including public transport, and recreational facilities or services”.

The council claimed that this outcome precluded them from paying for holidays and recreational activities outside of the brothers’ local communities.

However, Lady Justice Davies accepted BG and RG’s position that the outcome only restricted “necessary facilities or services” to the local community, not “recreational facilities or services”.

Paying for holidays ‘a means of meeting needs’

She also rejected Suffolk’s view that meeting a need for recreational facilities meant supporting the person to access them, but not paying for entry.

“I do not accept that it is possible to use recreational facilities merely by the provision of support to access the facility if the adult in question cannot afford to pay for the entry requirements,” she said. “The financial support, previously provided by the appellant, is not simply a means of paying for the respondents to take part in such activities and to go on holiday, it is a means of meeting their needs which arise from and are related to the physical and mental disability from which each suffers. It is a need which cannot be met without financial support from the appellant.”

In doing so, she rejected Suffolk’s finding that SQ could meet all of her sons’ eligible needs, on which basis the authority provided no funding.

“SQ cannot meet all her sons’ needs for recreation as she is unable to afford entrance fees, transport and other costs,” said Lady Justice Davies. “To find, as the appellant did, that SQ as their carer can meet all the eligible needs of the respondents is to ignore a key element of those needs namely the ability to fund the means to access and take part in recreational activities including holidays.”

Her judgment, with which fellow judges Lord Justice Phillips and Lord Justice Baker agreed, quashes Suffolk’s November 2020 decison to end the brothers’ direct payments.

In response to the ruling, a spokesperson for Suffolk County Council said: “The Care Act remains a relatively new piece of legislation and these proceedings were pursued with the aim of securing clarity as to how the Act should be interpreted and applied. Whilst we accept this judgment, we are disappointed. Suffolk County Council remains committed to properly, and fairly, assessing needs to ensure that our limited resources are used to support our residents in a way that is fair. We will carefully consider this judgment and ensure that our practice guidance is updated to reflect this outcome.”