Funding cuts threat to clients without capacity
Is effective social care reform possible in an age of austerity? Jean Gould reports from LAG’s recent community care conference, which followed a year of significant upheaval in this field.
Community care law was shaped by three seismic events in 2014: the Care Act 2014, which comes into force in April 2015, repealing almost all existing adult social care and carer law; the trenchant criticisms of implementation of the Mental Capacity Act 2005, especially the deprivation of liberty safeguards (DoLS), made by the Lords Select Committee; and the storm unleashed by the Supreme Court in the Cheshire West case.
Speaking at LAG’s community care conference, Simon Medcalf, deputy director of social care, policy and legislation for the Department of Health, said the aims of the new act are to promote wellbeing, and enable people to have more control over their own lives.
Karen Ashton, from Public Law Solicitors, agreed that there is much to welcome in the act. The language and structure is more accessible, and there is real reform, for instance the duty to meet the eligible needs of carers, and continuity of care to help people move from one region to another, she said. However, Ashton warned that the key flaw in the move to modernise the law is that it is premised on the need for reform, rather than for funding.
Ashton said that local authorities are putting their need to control budgets in the face of severe underfunding, ahead of protecting substantive rights. Against such huge financial pressures, the ultimate test for the Care Act is the extent to which it unequivocally enshrines essential protection for individuals with care and support needs. Ashton argued that it fails that test because it creates a framework, which arguably makes it easier to move from lawful to unlawful practice.
Richard Gordon QC set out the tortuous route from the judgment in HL v UK in 2004, to the Cheshire West case 10 years later.
The so-called acid test applied by Lady Hale in Cheshire West established that someone is deprived of their liberty if they lack the capacity to consent, are under continuous supervision and control, and not free to leave. As Alex Ruck-Keane, of 39 Essex Street Chambers, explained, it still leaves outstanding questions including, what ‘continuous supervision and control means’.
What is clear is that the impact on local authorities and on the Court of Protection (CoP) in terms of sheer numbers is huge. The CoP President has set out a ‘streamlined’ process for dealing with relatively uncontentious cases quickly (Re X  COP 25 & 37). However, as Sophy Miles, of Miles & Partners, explained, the approach is contentious: it does not necessarily require an oral hearing; nor that the incapacitated person is a party, or has to have a litigation friend.
The fall-out from Cheshire West came fast on the heels of the damning review of DoLS by the House of Lords post-legislative scrutiny committee, which prompted an overhaul of the whole procedure by the Law Commission.
Perhaps the sharpest illustration of the effect of cuts on the wellbeing of vulnerable people came from the Official Solicitor (OS), Alastair Pitblado, who described being in a Catch-22 situation. He is litigation friend to IS, a 59-year-old Nigerian national without a passport, who is believed to have been in the UK for 13 years, unlawfully. He is blind, significantly cognitively impaired and unable to care for himself. In order to determine what care support he might qualify for here, his immigration status needed to be resolved. The OS sought exceptional funding from the Legal Aid Agency’s director of legal aid casework, to instruct an immigration solicitor. He was refused.
IS applied for judicial review, together with other applicants, over the refusal of exceptional funding. Ironically no funding was available for the judicial review either, but IS was represented under a conditional fee agreement, and the Law Society indemnified the OS against adverse costs up to £55,000. The defendants, the Lord Chancellor and director of legal aid casework, refused requests to disclose information about the operation of the scheme, or to limit any costs application to £55,000. The Court of Appeal subsequently agreed a protective costs order on the basis that there was an issue of general importance to be determined (IS v Director of Legal Aid Casework  EWCA Civ 886 at para 22). Collins J quashed the decision to refuse IS legal aid on the grounds that: (i) the guidance on article 8 was wrong; and (ii) the director had wrongly found that article 8 was not engaged. He remitted IS’s case for reconsideration by the director of legal aid, who subsequently granted it.
The Court of Appeal commenting on IS’s case said: ‘It is impossible to see how a man suffering from his disabilities could have had any meaningful involvement in the decision-making process without the benefit of legal representation.’