Community Care Law - Examples of Cases
Below are some examples of cases we have dealt with - client names have been changed to preserve anonymity.
Social Services Direct Payments in exceptional circumstances: Angela's story
This case concerns the quality of life for a severely learning disabled woman with challenging behaviour living at home with her parents. Legal proceedings were not issued in the matter because the Local Authority conceded the legal points prior to issue. Nevertheless the outcome was significant for Angela, her family and the learning disabled community in Leeds.
Angela had been cared for by her immediate family, extended family and a network of friends over many years. Her quality of life was enhanced by the social activities she enjoyed with family and friends, going out for meals, going to the theatre, trips to London or the coast and holidays away. When able to engage in this way, Angela is a happy woman and responds warmly to those around her. When unable to get out and have contact with her support network her behaviour becomes exceptionally difficult to manage.
While ever her parents were working, these additional costs were met by her parents. However, once they retired they could no longer top up Angela's benefit income to meet the cost of her expenses when taken out by others. This problem was put to social services to seek a way of continuing the care network and so maintaining Angela’s quality of life.
A number of options were considered and rejected before social services suggested putting forward a case for the payment of direct payments to Angela's mother for her care of Angela. Direct Payments can only be made to close family members living in the same household where the circumstances are exceptional; by implication the Local Authority took the view that these were such circumstances.
Angela's family sought our advice when after months of discussion, the social services department appeared to back track on its original view and refused direct payments. We made legal representations as to why we considered this to be an exceptional case. The Local Authority responded in the first instance by advising that the chief officer required to ratify the decision had not done so. We made further representations requiring that a decision be made to comply with public law principles. The chief officer duly made a negative decision.
This may have been the end of this matter but an earlier data access request revealed that this same chief officer had written to a politician regarding the matter advising that a payment of direct payments in this case would bankrupt the local authority because the case would apply to so many others.
In making this statement the chief officer had shown his bias prior to making the decision and so a further challenge was made to the Local Authority regarding the fettering of discretion by the decision maker. We sought and eventually obtained an alternative independent decision maker on the facts of the case. The decision maker supported our view that this matter met the exceptional criteria for direct payments. The outcome is that Angela's mother is paid for some hours of caring for her daughter at home; a task which it is accepted is unique because no one would be allowed to care for Angela at home whilst her mother was there. Angela's mother will be able to use her payments to ensure her daughter can still maintain her social activities and lifestyle.
Helping to keep care homes open
We were instructed by four families of residents of a purpose built property for adults with disabilities in a residential area of Leeds. The standard of care at the unit was said to be high and the residents who became our clients were very happy living in the small community.
Leeds City Council was seeking to implement supported independent living (SIL) for people with disabilities in the area and undertook a consultation with the care home residents and other disabled people to seek views on moving to SIL. The four families who instructed us were concerned that independent living was not an option for their family members because of their profound level of learning and physical disability.
We made written representations emphasizing in particular, the failure on the part of the Local Authority to consider the best interests of our clients (given their lack of capacity) and the failure to protect their rights under Article 8 of the European Convention on Human Rights to retain their home. In the light of the representations, the Local Authority was forced to recognize that the interests of the current residents had to outweigh a development of the site for a different group of disabled people.
Challenging DWP decisions on benefits appointeeship: Mrs Johnson's story
Mrs Johnson is the mother and carer for her son who has Downs Syndrome. She was his appointee for benefit purposes as he was unable to manage his own finances. Mrs Johnson was in dispute with the Local Authority regarding the level of contribution her son was due to pay for his social services care.
The Local Authority wrote to the DWP to seek the displacement of Mrs Johnson as appointee and the instatement of the Local Authority in her stead. The DWP investigated the matter but failed to advise Mrs Johnson of the outcome of the investigation, or to give her an opportunity to put her case. Instead, without effective notice, Mrs Johnson lost access to her son’s benefits and for a considerable period he was without access to his own benefit income due to the disruption.
We issued proceedings against the DWP on two grounds: the removal of Mrs Johnson as appointee without any consideration of the claimant’s views or wishes (contrary to the Mental Capacity Act) and as a potential breach of Article 6 of the European Convention on Human Rights (right to a fair hearing) due to the lack of appeal rights. After issuing proceedings the DWP conceded its position and agreed to a consent order giving the appointeeship back to the client’s mother, as he wished.
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