Use it or lose it: community care
David Edwards and Zena Soormally examine the availability of public funding in community care cases.
Use it or lose it
There is a widespread public perception (in some cases shared by advisers and community organisations) that legal aid is no longer available for anything other than criminal cases. Legal Action’s ‘Use it or lose it’ series aims to highlight where legal aid remains for civil cases.
Community care law emerged relatively unscathed from LASPO. In fact, the number of cases increased from 830 in April to June 2014 to 1,212 in the same period in 2015.1Legal Aid Statistics in England and Wales April to June 2015: Ministry of Justice Statistics bulletin, 24 September 2015, p29, fig 3.
Most of the community care areas that were in scope pre-LASPO remain so now, but it is a category that is not widely understood and encompasses disparate areas of the substantive law.
What is community care?
Community care is a broad category. In summary, it covers legal advice and challenges relating to:
the provision of services by local authority social services departments, both to children and young people (generally under the Children Act 1989) and to adults, now largely under the new framework of the Care Act 2014; and
•the provision of services by local authority social services departments and clinical commissioning groups in relation to aftercare services under Mental Health Act 1983 s117.
Welfare proceedings in the Court of Protection and advice about the Mental Capacity Act 2005 also fall under the ‘community care’ legal aid contract but, as the nature of those cases is distinct from the more usual community care cases, CoP matters are considered separately below.
What work can be carried out under legal aid funding?
Community care cases could include:
a family not getting the help that they need to care for a severely disabled child;
•a 16-year-old who has fled an abusive home and has nowhere to sleep that night;
•a family with no recourse to public funds who have finally exhausted the resources of the friends whose floors they have been sleeping on;
•a 17-year-old in a young offender institution who has been approved for early release but has nowhere safe to go;
•an unaccompanied asylum-seeking boy who is wrongly being treated as an adult;
•a care-leaver not being given the support she needs to pursue her education;
•an adult with disabilities whose direct payments have been suspended, leaving her with no way to meet her needs for care and support; and
•an adult previously detained under Mental Health Act 1983 s3 who has not been provided with adequate aftercare services on discharge.
The legal aid contract
There are distinct statutory frameworks governing community care for children and for adults. Both, however, follow the same basic pattern: in certain defined circumstances, a local authority will have a duty to assess a person’s needs; and a duty or a power to formulate and implement a plan to meet certain of those needs by providing services. Challenges can be brought regarding: a failure to assess needs; an inadequate assessment of needs; an unlawful plan to meet needs; or a failure to implement a care plan.
The Legal Aid Agency’s 2014 standard civil contract category definitions define community care as:
18. Legal Help and related proceedings concerning the provision of community care services, as defined in paragraph 6 of Part 1 of Schedule 1 to [LASPO], the provision of facilities for disabled persons as set out in Paragraph 7 of Part 1 of Schedule 1 to the Act and the inherent jurisdiction of the high court in relation to vulnerable adults, as set out in paragraph 9 of Part 1 of Schedule 1 to the Act …
19. Legal Help on issues arising under the Mental Capacity Act 2005 and advocacy in proceedings to the extent set out at paragraph 4 of Part 3 of Schedule 1 to [LASPO], regarding a person’s capacity, their best interests (welfare and/or medical treatment) and deprivation of liberty issues.
There is an overlap with the housing category of the 2013 category definitions, which includes ‘the provision of accommodation by way of community care services … in relation to an individual who is homeless or threatened with homelessness’. Those cases – most frequently, cases involving homeless 16- and 17-year-olds – can be funded under either category.
What changes did LASPO make?
As in other areas of law, LASPO narrowed the Legal Services Commission’s previous broad definition of the community care category, giving an exhaustive list (Sch 1 Pt 1 para 6) of the statutory provisions under which services have to be provided before a matter can come within the scope of the category. This has been repeatedly amended, for instance to reflect the coming into force of the CFA 2014 and the Care Act 2014. The list of statutory provisions set out in Sch 1 Pt 1 para 6 is currently:
National Assistance Act 1948 Pt 3 and ss47–48;
•Health Services and Public Health Act 1968 s45;
•MHA 1983 s117;
•Children Act 1989 ss17, 20, 22A–22C, 23, 23B–23C and 24–24B;
•Carers and Disabled Children Act 2000 s2;
•National Health Service (Wales) Act 2006 s192 and Sch 15; and
•Care Act 2014 Pt 1.
In addition, Sch 1 Pt 1 para 7 brings within the definition services provided ‘in relation to grants under Part 1 of the Housing Grants, Construction and Regeneration Act 1996 for the provision of facilities for disabled persons’, more commonly known as disabled facilities grants towards the costs of adapting a home.
What remedies can be sought?
Decisions taken by local authorities under these provisions will almost always be amenable to judicial review. However, clients will be encouraged to pursue local authority complaints procedures (governed by the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 SI No 309). If (as will usually be the case) the internal complaint investigation is inadequate, there is a further remedy by way of complaint to the independent Local Government Ombudsman, in England, or the Public Services Ombudsman, in Wales. These alternative remedies are beset by inordinate delays, evidence of which will often, in itself, be sufficient to demonstrate to the LAA that they are not an effective or realistic alternative to judicial review.
However, for clients who might expect to recover some money, there is one benefit to the complaint/LGO route: the work that a solicitor does to assist them in pursuing a complaint will be done at the legal help level of funding, so any money recovered is not liable to the statutory charge, and the client can keep it. The LGO is also flexible: it can recommend remedies (such as the instruction of an independent social worker to review an assessment or a care plan) that the Administrative Court cannot order. Local authorities are not obliged to accept the LGO’s recommendations but they usually do and an unreasonable refusal to do so may itself be amenable to judicial review.
Care Act 2014 s72 contains the statutory basis for establishing, by way of regulations, a system of ‘appeals against decisions taken by a local authority in the exercise of functions under this Part in respect of an individual’. To date, no such system exists. The consultation on the policy proposals for a new appeals system for care and support (as well as on the draft regulations and guidance to implement the cap on care costs) ran from February to March 2015; the results of that consultation are awaited. If it were ever to be created, clients would probably be required to exhaust it before resorting to judicial review. Some local authorities have already established their own internal ‘appeals’ processes, of varying degrees of independence and effectiveness.
Examples of cases covered
Children in need
Children Act 1989 s17(1) created a ‘general duty’ for local authorities to ‘(a) safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs’. Under s17(10) a child is in need if ‘(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority … ; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or (c) he is disabled’. So all disabled children are children in need, although of course not all children in need have disabilities.
That the duty in s17 is a general one, not owed specifically and enforceably to each child in need within an authority’s area, was confirmed over a decade ago: R v LB Barnet ex p G and other appeals  UKHL 57, 23 October 2003. It is a continued source of confusion and frustration, in particular when now contrasted with the comparatively clear and accessible framework for assessing and meeting the needs of adults that is created by the Care Act 2014. In practice, the statutory guidance (Working together to safeguard children) expands on, and to some extent bolsters, the relatively sparse duty described in the primary legislation.
One of the most heavily litigated questions about s17 in recent years is the extent to which it requires a local authority to support (by way of accommodation and subsistence payments) families who have no recourse to public funds by virtue of their immigration status and no other means of support. Local authorities, especially in London, have largely been left to bear the brunt of government policy and primary legislation aimed at excluding those families from other sources of support.
The interaction between the Children Act 1989 and the relevant immigration legislation, in particular Nationality, Immigration and Asylum Act 2002 Sch 3, is especially complicated. The upshot of the decisions in Birmingham City Council v Clue  EWCA Civ 460, 29 April 2010 and R (VC and others) and another v Newcastle City Council  EWHC 2673 (Admin), 24 October 2011 is that families who would be entitled to support from the Home Office under Immigration and Asylum Act 1999 s95 should be required to access that support, but those whose only entitlement to Home Office support would be via s4 (those who are ‘failed’ asylum-seekers or not asylum-seekers at all) are entitled to look instead to a local authority for support under Children Act 1989 s17.
More recently, the focus has been on the extent to which a family is required to co-operate with a local authority’s investigations into how it has been supporting itself before asking the authority for help (eg N and N v LB Newham and another  EWHC 2475 (Admin), 9 August 2013). It remains to be seen how proposed further restrictions on access to asylum support for ‘failed’ asylum-seekers in the Immigration Bill will impact on the number of families who are supported under s17, but it is hard to see how it could do anything other than increase the burden on local authorities, at least in the short term.
Children Act 1989 s20 requires local authorities to accommodate children in need in their area who appear to require such accommodation. Despite repeated judicial criticism at the highest level, and clear and long-established statutory guidance, practitioners still regularly come across local authorities that try to avoid accommodating homeless 16- and 17-year-olds under s20, either by purporting to accommodate them instead under s17 (see R (G) v LB Southwark  UKHL 26, 20 May 2009) or by diverting them to homelessness services and accommodation under the Housing Act 1996 (see M v LB Hammersmith and Fulham  UKHL 14, 27 February 2008). The motive appears to be to avoid looking after the young person for long enough that they will, on turning 18, be a former relevant child and therefore owed duties as such at least until the age of 21. The unlawfulness of these practices is so clearly established that authorities regularly back down on receipt of pre-action correspondence. If they do not, firms with the necessary authorisation retain the power delegated from the LAA to authorise emergency legal aid funding for challenges brought under s20, so that cases can, where appropriate, be brought urgently to the Administrative Court. (Section 20 is one of the few provisions in respect of which these delegated functions can still be used. Notably, they cannot be used for s17 cases, so challenges in respect of homeless families will require an urgent email application to the LAA. These can, in theory and sometimes in practice, be decided within hours.)
A child who has been looked after by the local authority, either under Children Act 1989 s20 or pursuant to a s31 care order, may, on turning 18, become a former relevant child. As such, they may be entitled to ongoing support from the local authority at least until they turn 21 and, if they remain in education, potentially until they reach the age of 25.
Children Act 1989 s23C sets the criteria for establishing whether a young person is a former relevant child. Essentially, a young person who has been looked after for a total of 13 weeks, at least one day of which was after their 16 birthday, will be a former relevant child. Challenges can be brought against a local authority’s refusal to accept that a young person is a former relevant child. Such challenges have been successful where a local authority purports to have accommodated under s17 (R (G) v LB Southwark) or under the HA 1996 (M v LB Hammersmith and Fulham). More recently, an argument that a local authority was required to treat as a former relevant child a young person whom they had wrongly assessed to be an adult and had therefore allowed to be accommodated by the Home Office, was rejected: R (GE (Eritrea) v Bedford Borough Council  EWCA Civ 1490, 20 November 2014. The court said, however, that a local authority did have a discretion to treat a young person as if they were a former relevant child, if the circumstances required it.
Local authorities must maintain and regularly review, for every former relevant child, a pathway plan, which describes the young person’s ambitions and the support they will be given to meet them, and will have to appoint someone to act as their personal adviser. There are specific duties to support the young person to remain in education, including meeting the costs associated with doing so. There is no direct equivalent to s20, so a local authority is not usually directly obliged to accommodate the young person. Ordinarily, they can discharge their duties by supporting the young person to access ‘mainstream’ housing support. For young people who are prevented from accessing such support by their immigration status, the local authority may have to continue to accommodate them: R (SO) v LB Barking and Dagenham  EWCA Civ 1101, 12 October 2010.
In 2014, the CFA 2014 put on a statutory footing the practice of ‘staying put’ arrangements. Authorities are now required to give support to a young person who wants to remain with their former foster carers on turning 18, provided that the authority considers it appropriate to do so. It is likely that the court will soon be asked to consider how that duty operates in respect of severely disabled care-leavers with extensive (and therefore expensive) care needs. Would a local authority be allowed to take the costs of care at home into account when considering whether it is appropriate to support a staying put arrangement?
Care Act 2014 Pt 1 created, for the first time, a single, coherent and comprehensive framework for local authority duties towards adults with community care needs (at least in England, since much of the act is not in force in Wales). At the same time years of accrued statutory guidance was consolidated into a single piece of Care and Support Statutory Guidance.
The Care Act 2014 requires local authorities to carry out a needs assessment for every adult who it appears ‘may have needs for care and support’ (s9) unless that adult, having capacity to do so, refuses to have such an assessment (s11). The threshold for triggering is not intended to be a high one. The assessment must involve the person being assessed and anyone (eg a carer and/or a family member) that person thinks should be involved.
Having carried out the assessment, the local authority must determine (s13), whether any of the needs identified meet the eligibility criteria. The eligibility criteria are defined nationally in the Care and Support (Eligibility Criteria) Regulations 2015 SI No 313 (CS(EC) Regs). These provide (at reg 2) that an adult’s needs meet the criteria if they arise from or are related to a physical or mental impairment or illness, and if, as a result of their needs, they are unable to achieve two or more of a list of specified outcomes (eg managing and maintaining nutrition, or maintaining personal hygiene), and if the consequence of that inability is, or is likely to be, a significant impact on their well-being.
Being unable to achieve an outcome can include being unable to achieve it without assistance or even being able to achieve it without assistance, if doing so: causes significant pain, distress or anxiety; endangers or is likely to endanger the health or safety of them or of others; or takes significantly longer than would normally be expected.
Once a local authority has determined that an adult has eligible needs, it is under a duty to meet them (Care Act 2014 s18). In order to do so, it must prepare a care and support plan (s24) that includes details of the adult’s personal budget, ie the cost to the local authority of meeting those of the adult’s needs which it is required to meet (s26). An adult can, in most cases, require the authority to make their personal budget available to them by way of direct payments (s31). A local authority is entitled to assess an adult’s financial circumstances and to require them to make a contribution towards the costs of meeting their assessed needs, to an amount potentially up to the full cost of doing so.
The Care Act 2014, for the first time, creates a fully equivalent set of duties owed by local authorities towards carers: not only to assess their needs (which was a duty already), but, in defined circumstances, to provide services to meet them (s20). Carers have their own set of eligibility criteria, at CS(EC) Regs reg 3. Since the duties to carers are contained in Care Act 2014 Pt 1, they are as much within the scope of the legal aid scheme as those owed directly to individuals with care needs.
The act also significantly expands the circumstances in which an authority may be required to provide independent advocacy support to an adult who would otherwise experience substantial difficulty in engaging with the process of assessing and meeting their care needs (s67). The involvement of an independent advocate can be vital when acting for a client who lacks capacity to instruct a lawyer directly.
Court of Protection and inherent jurisdiction
There is no necessary connection between the community care legislation described above and the jurisdiction of the CoP under the MCA 2005. Many, but not all, of those who are the subjects of applications to the CoP will also have community care needs, but the CoP is not able to adjudicate public law questions as to the adequacy or otherwise of the assessments carried out or the care plans prepared; nor is it able to require a local authority to fund provision that it would not otherwise fund. The delineation between the CoP’s jurisdiction and that of the Administrative Court has been the subject of considerable discussion and litigation: see, most recently and most definitively, Re MN (Adult)  EWCA Civ 411, 7 May 2015.
In brief, the CoP’s role is to make decisions on behalf of those who the court is satisfied lack the mental capacity to do so themselves. In making such decisions, it applies the best interests principle (MCA 2005 s4). It has the power to make declarations as to an individual’s capacity (s15) and decisions as to what is in their best interests if they lack it (s16). The CoP also has jurisdiction to hear challenges to authorisations granted under the Deprivation of Liberty Safeguards (s21A), a jurisdiction which, in the aftermath of the Supreme Court’s decision in P v Cheshire West and Chester Council and another; P and Q v Surrey County Council  UKSC 19, 19 March 2014, has, at times recently, threatened to overwhelm the other aspects of its role.
The legal aid contract
It should be noted that proceedings in the CoP, and those under the inherent jurisdiction in relation to vulnerable adults, are also within the scope of the mental health category in the 2014 category definitions. Firms holding either contract are equally able to carry out this work.
Not all proceedings in the CoP are within the scope of the legal aid scheme, which is set by LASPO Sch 1 Pt 1 para 5. This brings within scope generally ‘[c]ivil legal services provided in relation to matters arising under … the Mental Capacity Act 2005’, but then subjects that to several restrictions and exclusions.
Even at the legal help level the scope does not include advice or assistance with ‘the creation of lasting powers of attorney … or the making of advance decisions’ (Sch 1 Pt 1 para 5(3)), although it can include ‘services provided in relation to determinations and declarations by a court under the [MCA 2005] as to the validity, meaning, effect or applicability of[:] (a) a lasting power of attorney that has been created, or (b) an advance decision that has been made’ (Sch 1 Pt 1 para 5(4)). Broadly speaking, then, non-contentious work under the MCA 2005 is not covered, but a provider may be able to give advice and assistance (legal help) to an individual if, for instance, the Office of the Public Guardian brings an application to the CoP to challenge the validity of a lasting power of attorney under which they are appointed. The Lord Chancellor’s Guidance Under Section 4 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 stresses the need to ensure, in such cases, that the sufficient benefit test is met ‘in terms of [the client’s] financial circumstances or potential decisions concerning medical treatment or other welfare matters’.
The provision of ‘advocacy’ (ie work done under a legal aid certificate in relation to CoP cases) is further restricted by LASPO Sch 1 Pt 3, which has the effect that legal aid is only available for representation in the CoP to the extent that the proceedings concern a person’s:
right to life;
•liberty or physical safety;
•capacity to marry, to enter into a civil partnership or to enter into sexual relations; or
•right to family life.
Note that proceedings need only relate to ‘a person’s’ rights as enumerated, not necessarily the rights of the applicant for legal aid. This means a family member who is a respondent to an application to the CoP can, provided the other criteria are satisfied, be legally aided to be represented in those proceedings. But the vast majority of the CoP’s workload relates to the property and financial affairs of adults who lack the capacity to manage them, and parties to those proceedings will not get legal aid to be represented.
With the exceptions of certain DoLS cases (see below), legal aid in the CoP is subject to the ordinary financial eligibility tests. In addition, applications are required to meet the standard merits criteria (Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 106 reg 39), cost-benefit and prospects of success criteria, and additional criteria (reg 52) which require that:
the CoP has ordered, or is likely to order, an oral hearing; and
•it is necessary for the individual to be provided with full representation in the proceedings.
The question of whether it is necessary for an individual to be represented often comes down to whether there is another party to the proceedings who will be advancing the same case. The lord chancellor’s LASPO s4 guidance is that ‘in general the LAA will only grant legal representation if the applicant wishes to put forward a new and significant argument which would not otherwise be advanced. Generally there should not be more parties separately represented before the Court than there are either cases to put or desired outcomes.’
Those deprived of their liberty by an authorisation under the DoLS framework are entitled to non-meanstested legal aid to bring a challenge against the authorisation under MCA 2005 s21A, as is the person appointed under the authorisation to act as their relevant person’s representative (Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI No 480 reg 5(1)(g)). The entitlement to non-means-tested legal aid only lasts as long as the authorisation is in force, so the CoP should extend it for the duration of s21A proceedings rather than directly authorising the deprivation of liberty itself: Re UF  EWHC 4289 (COP), 21 November 2013.
In suitably urgent cases, firms with the necessary authorisation can grant emergency legal aid for representation in the CoP using the powers delegated by the LAA.
Legal aid: some practical issues
Many community care clients will require litigation friends, either because they are children or because they are adults who lack the capacity to instruct a solicitor directly. People who are the subject of CoP proceedings will almost always need a litigation friend. As such, practitioners need to be aware of the rules that apply to taking instructions from litigation friends, in particular as to who should be signing the legal aid forms and whose resources should be taken into account when assessing financial eligibility. ■