The King (on the Application of HL) v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 18 April 2023 |
| Neutral Citation | [2023] EWHC 866 (Admin) |
| Docket Number | Case No: CO/720/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 866 (Admin)
Mr Justice Julian Knowles
Case No: CO/720/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Shu Shin Luh and Alice Irving (instructed by TV Edwards) for the Claimant
Leon Glenister (instructed by GLD) for the Defendant
Hearing date: 24 October 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an application for judicial review with the permission of Turner J. The decision challenged is what the Claimant says was the Defendant's unlawful decision on 1 December 2021 not to make regulations pursuant to s 72 of the Care Act 2014 (the CA 2014) to make provision for appeals against decisions taken by a local authority in the exercise of its functions under Part 1 of the CA 2014 in respect of an individual.
In summary, Part 1 places local authorities under a duty to meet the care needs of eligible individuals within their area who, (typically) because of mental or physical disabilities, require such support. The local authority may do so, for example, by agreeing to fund so many hours a week of care and support for the individual, based upon an assessment of their particular needs.
Local authorities are under a general duty, in exercising their Part 1 functions in the case of an individual, to promote that individual's well-being: s 1(1). Well-being has an expansive definition, including personal dignity and control over day-to-day life: s 1(2). Local authorities are required to have regard to ‘the importance of beginning with the assumption that the individual is best-placed to judge’ their own well-being and to promote their participation in social care decisions as fully as possible: s 1(3).
A local authority has a duty to carry out a needs assessment of an adult where it appears they may have needs for care and support: s 9. Where an adult has needs for support, the local authority must determine whether any of the needs meet the specified eligibility criteria: s 13(1) (and see the Care and Support (Eligibility Criteria) Regulations 2015 (SI 2015/313). Section 18 provides that a local authority ‘must meet [an] adult's needs for care and support which meet the eligibility criteria’ where they are ordinarily resident in the local authority's area and certain financial criteria are met. Section 19 empowers local authorities to meet identified needs which they are not required to meet under s 18: s 19(1)
Where a local authority is required to meet an individual's needs under s 18, or decides to do so under s 19, it must prepare a ‘care and support plan’: s 24(1)(a). A care and support plan must specify, inter alia, the needs identified, those needs which meet the eligibility criteria, those needs the local authority will meet, and how they will meet them: s 25(1). In preparing a care and support plan, the local authority must involve the adult for whom it is being prepared and must take ‘all reasonable steps to reach agreement with the adult … about how the authority should meet the needs in question’: s 25(3), (5)
Section 72 of the CA 2014 is central to this case. It is entitled ‘Part 1 appeals’, and provides:
“(1) Regulations may make provision for appeals against decisions taken by a local authority in the exercise of functions under this Part in respect of an individual (including decisions taken before the coming into force of the first regulations made under this subsection).
(2) The regulations may in particular make provision about —
(a) who may (and may not) bring an appeal;
(b) grounds on which an appeal may be brought;
(c) pre-conditions for bringing an appeal;
(d) how an appeal is to be brought and dealt with (including time limits);
(e) who is to consider an appeal;
(f) matters to be taken into account (and disregarded) by the person or body considering an appeal;
(g) powers of the person or body deciding an appeal;
(h) what action is to be taken by a local authority as a result of an appeal decision;
(i) providing information about the right to bring an appeal, appeal procedures and other sources of information and advice;
(j) representation and support for an individual bringing or otherwise involved in an appeal;
(k) investigations into things done or not done by a person or body with power to consider an appeal.
(3) Provision about pre-conditions for bringing an appeal may require specified steps to have been taken before an appeal is brought.
(4) Provision about how an appeal is to be dealt with may include provision for —
(a) the appeal to be treated as, or as part of, an appeal brought or complaint made under another procedure;
(b) the appeal to be considered with any such appeal or complaint.
(5) Provision about who is to consider an appeal may include provision—
(a) establishing, or requiring or permitting the establishment of, a panel or other body to consider an appeal;
(b) requiring an appeal to be considered by, or by persons who include, persons with a specified description of expertise or experience.
(6) Provision about representation and support for an individual may include provision applying any provision of or made under section 67, with or without modifications.
(7) The regulations may make provision for —
(a) an appeal brought or complaint made under another procedure to be treated as, or as part of, an appeal brought under the regulations;
(b) an appeal brought or complaint made under another procedure to be considered with an appeal brought under the regulations;
(c) matters raised in an appeal brought under the regulations to be taken into account by the person or body considering an appeal brought or complaint made under another procedure.
(8) The regulations may include provision conferring functions on a person or body established by or under an Act (including an Act passed after the passing of this Act); for that purpose, the regulations may amend, repeal, or revoke an enactment, or provide for an enactment to apply with specified modifications.
(9) Regulations may make provision, in relation to a case where an appeal is brought under regulations under subsection (1) —
(a) for any provision of this Part to apply, for a specified period, as if a decision (“the interim decision”) differing from the decision appealed against had been made;
(b) as to what the terms of the interim decision are, or as to how and by whom they are to be determined;
(c) for financial adjustments to be made following a decision on the appeal.
(10) The period specified under subsection (9)(a) may not begin earlier than the date on which the decision appealed against was made, or end later than the date on which the decision on the appeal takes effect.”
Section 72 therefore confers a power, but not a duty, on the Defendant to make regulations governing appeals. It is common ground that no such regulations have been made (and, in fact, s 72 itself is not yet in force: it is for the Defendant by order to bring it into force: see s 127). Whether that failure, in the circumstances in which the Claimant says it took place, is unlawful, is the central issue in this case.
The context of s 72 is as follows.
Sometimes the local authority and the individual disagree about the level of care and support that is necessary. For example, the individual may feel that they require more hours than the local authority is willing to pay for after its Part 1 assessment. At present, there is no direct mechanism by which such disputes, including the actual merits of the case, eg, how many hours are actually needed, can be resolved through an independent appeals process.
The individual can complain to the local authority via its internal complaints procedure (which all local authorities are required to have: see the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 (SI 2009/309)) and then (on limited grounds) to the Local Government and Social Care Ombudsman (LGSCO), or they can seek judicial review of the local authority's decision, or bring a claim under the Human Rights Act 1998.
The Claimant relies on evidence which she says shows these are not effective dispute resolution mechanisms because, in simple terms, none of them is capable of reaching a decision on the merits of any dispute with the local authority.
Section 72 was introduced by the Government following consultation, having been recommended by the Law Commission. The subsequent decision of the Defendant in 2016 to implement an appeal system was based on these consultation outcomes and further consultation in 2015. A detailed summary of the consultative history is in the Claimant's Statement of Facts and Grounds (SFG) at [30]–[48] and in her Skeleton Argument at [32]–[38].
The nub of the Claimant's complaint is that the Defendant decided in 2016 to implement an appeals system under s 72, but then on 1 December 2021 in a White Paper performed what she regards as a volte-face and decided not to implement the appeals system either alongside or irrespective of cost capping reforms and instead, reopened the question of whether an appeals system was required at all.
There are three main grounds of challenge advanced on behalf of the Claimant:
a. Ground 1: the Defendant breached his duty to consult prior to making his decision in December 2021 to ‘shelve’ the implementation of an independent appeals system. This duty arose at common law.
b. Ground 2: the failure to implement an appeals system poses a real risk of individuals being unable to have effective access to a legal remedy to resolve social...
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