Court of Protection & Judicial Review Proceedings

To enquire about instructing me directly please send an email to carl@ihtbar.com or contact my Clerk at 1 Essex Court:

Tel: 020 7936 3030 or 020 7832 1010.

Tel out of hours: 07721 866 858.

Email: clerks@1ec.co.uk

Access to 1 Essex Court is from Fleet St or the Embankment via Middle Temple Lane. Our premises are in the far corner of the car park at the top of Middle Temple Lane, on the first floor. 

I have been invited to write an article for publication in the Autumn edition of the Expert Witness Journal (ahead of the Bond Solon annual international Expert Witness Conference in London on 9 November 2018), entitled, ‘The Advocate and the Expert in the Court of Protection’. The first draft of the article was submitted to the publisher 13.02.2018, and the final draft, which will take into account all cases decided in the Court of Protection up to July 2018, is scheduled for submission on 30 August.

CONTENTS OF THIS PAGE

– Introduction

– The five fundamental principles

– People who lack capacity

– Inability to make decisions

– Best interests

– Assessment of mental capacity

– The Code of Practice

– Presumption of capacity

– Legal test

– The two-stage test of capacity

– Inability to take a decision

– Burden of proof

– Deprivation of liberty

Court of Protection

– Introduction

– Duties

– Allocation to case pathways

– Practice Direction 3B

– The duty of the Court to manage cases

– The duty of the parties

– The duty of the legal representatives

– Agreeing issues

– Bundles

– Advocacy

– ADR

– Deprivation of liberty hearings

– s.15 MCA 2005 – Power to make declarations

s.17 MCA 2005 –  Section 16 powers: personal welfare 

s.18 MCA 2005Section 16 powers: property and affairs

– The overriding objective

– Participation of P

– The duty of the parties

– Application of the Civil Procedure Rules and Family Procedure Rules

– The court’s general powers of case management

– Court’s power to dispense with requirement of any rule

– Exercise of powers on the court’s own initiative

– Dealing with the application

– Directions

– Allocation of cases to case pathways

– Permission to start proceedings

– Where the court’s permission is not required

– Starting proceedings

– Responding to an application

– Orders for interim remedies

– Deprivation of liberty

– Procedure for disputing the court’s jurisdiction

– Participation in hearings

– Evidence

– Experts

– Disclosure

– Costs

Care Act 2014 and commentary

– Introduction

– Application

– Promoting individual well-being (s.1)

– Promoting integration of care and support with health services etc (s.3)

– Providing information and advice (s.4)

– Co-operating generally (s.6)

– Co-operating in specific cases (s.7)

– How to meet needs (s.8)

– Assessment of an adult’s needs for care and support (s.9)

– Assessment of a carer’s needs for support (s.10)

– Assessments under sections 9 and 10: further provision (s.12)

– The eligibility criteria (s.13)

– Power of local authority to charge (s.14)

– Assessment of financial resources (s.17)

– Duty to meet needs for care and support (s.18)

– Power to meet needs for care and support (s.19)

– Duty and power to meet a carer’s needs for support (s.20)

– Exception for provision of health services (s.22)

– Exception for provision of housing etc (s.23)

– The steps for the local authority to take (s.24)

– Care and support plan, support plan (s.25)

– Personal budget (s.26)

– Review of care and support plan or of support plan (s.27)

– Independent personal budget (s.28)

– Care account (s.29)

– Cases where adult expresses preference for particular accommodation (s.30)

– Adults with capacity to request direct payments (s.31)

– Adults without capacity to request direct payments (s.32)

– Direct payments: further provision (s.33)

– Notification, assessment, etc. (s.37)

– Case where assessments not complete on day of move (s.38)

– Where a person’s ordinary residence is (s.39)

– Disputes about ordinary residence or continuity of care (s.40)

– Financial adjustments between local authorities (s.41)

– Enquiry by local authority (s.42)

– Safeguarding Adults Boards (s.43)

– Temporary duty on local authority (s.48)

– Section 48: cross-border cases (s.49)

– Sections 48 to 51: supplementary (s.52)

– Part 1 appeals (s.72)

– Cross-border placements (Schedule 1)

– Safeguarding Adults Boards (Schedule 2)

The Care and Support (Cross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014

– Recent cases

Mental Capacity Act 2005

Introduction

The Court of Protection (‘COP’) derives its power from the Mental Capacity Act 2005 (‘MCA’) Part 2. Paragraph 17 of the MCA 2005 Explanatory Note (Territorial extent) states, ‘The Act extends only to England and Wales.’ Therefore the MCA 2005 does not apply to a statutory body in Scotland or Northern Ireland.

The MCA 2005 sets out a comprehensive integrated jurisdiction for the making of personal welfare decisions, health care decisions and financial decisions on behalf of people who lack capacity to make specific decisions for themselves. The Act’s starting point is to enshrine in statute the presumption at common law that an adult has full capacity unless it is established that he or she does not. It also includes provisions to ensure that people are given  all appropriate help and support to enable them to make their own decision or to maximise their participation in the decision-making process.

MCA 2005 sets out a comprehensive integrated jurisdiction for the making of personal welfare decisions, health care decisions and financial decisions on behalf of people who lack capacity to make specific decisions for themselves.

The two fundamental underlying concepts:

  1. lack of capacity’; and
  2. ‘best interests’,

are private law issues.

The relationship between best interests decision making (which is a private law issue) and the public law duties of statutory bodies responsible for meeting community care needs, has recently been examined in the case of N (Appellant) v ACCG and others (Respondents) [2017] UKSC 22.

In the High Court the starting point adopted by King J (with whom the Court of Appeal agreed), was Lady Hale’s statement in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, that the MCA 2005 is:

‘… concerned with enabling the court to do for the patient what he could do for himself if of fully capacity, but it goes no further. On an application under this Act, therefore, the court has no greater powers than the patient would if he were of full capacity.’

King J emphasised the danger of, ‘… blurring of the distinction as between the Court of Protection’s statutory duties in a private law context, (namely to consider the best interests of an incapacitated adult), with public law challenges in relation to the willingness, unwillingness, reasonableness or rationality of the services a public authority is willing or able to provide…’

In my submission, Judicial review is the correct remedy to challenge unreasonable or irrational decisions made by a public authority, which includes an alleged breach of statutory duty by an English local authority under the CA 2014.

The Court of Appeal in MN V ACCG confirmed that … the court has power to direct [an English] local authority to file evidence or to prepare and file a further plan, including, if the court directs, a description of the services that are available and practicable for each placement option being considered by the court. [An English] local authority is obliged to do so even though the plan’s contents  may not or do not reflect its formal position, for it is not for the [English] local authority (or indeed any other party) to decide whether it is going to restrict or limit the evidence that it presents…’  Community Care and the Law, Sixth edition, by Luke Clements and others, published by LAG, paragraphs 13.63 and 13.64.

The Supreme Court Press Summary in N (Appellant) v ACCG and others (Respondents) [2017] UKSC 22 states,

‘The jurisdiction of the Court of Protection is limited to decisions that a person (‘P’) could take if he had the capacity to do so … The MCA focuses on capacity in relation to a specific decision or matter. Rather than granting declaratory relief available under section 15, it is better if possible for the court to make orders under section 16 [26]. There is scope under section 16 for the court to make a decision on P’s behalf, or to appoint a deputy to make such decisions, and the court’s powers set out in section 17 include the power to decide where P is to live and what contact, if any, P is to have with any specified persons. These powers do not extend to decisions compelling third parties to accommodate, or meet, or to provide services or treatments for P [29]. The fact that the court has no greater power to take a decision than P would have had himself means that it too can only choose between the ‘available options’.  Nor can the court use its powers to put pressure upon a local authority to make particular decisions in exercise of its statutory powers and duties to provide public services. Such decisions can instead be challenged on judicial review principles, where the legal considerations for the public authority and for the court will be different from those under the MCA [37] … The court has wide case management powers, which include the identification of issues which need full investigation, and it is entitled to take the view that no useful purpose will be served by holding a hearing to resolve other issues [41]. Accordingly, since the court did not have power to order the respondent to fund what N’s parents wanted, nor to order the actual care providers to do that which they were unwilling or unable to do, the judge was entitled to conclude (as in substance she had) that no useful purpose would be served by continuing the hearing [44].’

In the leading judgment, Lady Hale (with whom Lord Wilson, Lord Reed, Lord Carnwath and Lord Hughes agreed) stated:

‘1.      So what is the decision-maker to do if he has reached the conclusion that a particular course of action is in the best interests of P but the body who will be required to provide or fund that course of action refuses to do so? Specifically, what is the role of the Court of Protection where there is a dispute between the providers or funders of health or social care services for a person who lacks the capacity to make the decision for himself and members of his family about what should be provided for him?

  1. At 11.32 pm on the day before the hearing was due to begin, counsel for the local authority emailed the other parties to give notice of her intention to argue that the Court of Protection had “no jurisdiction” to decide the issues. The matters that the parents wanted were “not on the table” given that the CCG had said that it was not willing to allow or to arrange them, or to commission staff or to fund the necessary resources. These were public law decisions which could only be challenged by way of judicial review. The Court of Protection could only decide between the “available options”, making a choice that MN could make if he were able, and it was inappropriate to use the proceedings to try and obtain a best interests declaration in order to influence a public law decision.
  2. [Eleanor King J explained at paragraph 53 of her judgment that] Judicial review was the only proper vehicle through which to challenge unreasonable or irrational decisions made by care providers and other public authorities. In rare cases where a public authority might be acting in breach of convention rights by refusing to fund a particular form of care that could be raised in the Court of Protection by way of a formal application under section 7 of the Human Rights Act 1998.
  3. It will be apparent from the above account that the jurisdiction of the Court of Protection (and for that matter the inherent jurisdiction of the High Court relating to people who lack capacity) is limited to decisions that a person is unable to take for himself.
  4. So what powers does the court have? By section 15(1) and (2) it has power to make declarations as to (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration; (c) the lawfulness or otherwise of any act (including an omission or course of conduct) done, or yet to be done, in relation to that person. It will be seen from this that the Act focuses on capacity in relation to a specific decision or matter. This is consistent with the underlying principles of the Act. By section 1(2), a person must be assumed to have capacity unless it is established that he lacks it. Under section 2(1), the question is whether a person lacks capacity in relation to a “matter”.
  5. This was not a case in which the court did not have jurisdiction to continue with the planned hearing. It was a case in which the court did not have power to order the CCG to fund what the parents wanted. Nor did it have power to order the actual care providers to do that which they were unwilling or unable to do. In those circumstances, the court was entitled to conclude that, in the exercise of its case management powers, no useful purpose would be served by continuing the hearing.’

‘MCA 2005 also enshrines in statute best practice and former common law principles concerning people who lack capacity and those who take decisions on their behalf. The statutory framework is based on two fundamental concepts: lack of capacity and best interests. For those who lack capacity to make particular decisions, the Act provides a range of processes, extending from informal arrangements to court-based powers, to govern the circumstances in which necessary decisions can be taken on their behalf and in their best interests.

The essential provisions of MCA 2005 are intended to: 

  • set out five guiding principles to underpin the Act’s fundamental concepts and to govern its implementation and operation;
  • define people who lack decision-making capacity;
  • set out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time;
  • establish a single criterion (best interests) for carrying out acts or taking decisions on behalf of people who lack capacity to consent to such acts or take those specific decisions themselves;
  • clarify the law when acts in connection with the care or treatment of people lacking capacity to consent are carried out in their best interests, without formal procedures or judicial intervention, but with clear instructions on the use of restraint, and, in particular, acts resulting in deprivation of liberty;
  • create an administrative scheme for the authorisation of deprivation of liberty of people lacking capacity to make relevant decisions in hospitals and care homes;
  • extend the provisions for making powers of attorney which outlast capacity (lasting powers of attorney (LPA)) covering health and welfare decisions as well as financial affairs, with improved safeguards against abuse and exploitation;
  • provide for a decision to be made, or a decision-maker (deputy) to be appointed, by a specialist Court of Protection;
  • make statutory rules, with clear safeguards, for the making of advanced decisions to refuse medical treatment;
  • set out specific parameters for research involving, or in relation to, people lacking capacity to consent to their involvement;
  • provide for the appointment of independent mental capacity advocates (IMCA’s) to support people with no-one to speak for them who lack capacity to make important decisions about serious medical treatment and changes of accommodation, and in some circumstances to support those lacking capacity who are involved in safeguarding adults proceedings; and
  • provide statutory guidance, in the form of a code (or codes) of practice, setting good practice standards for the guidance of people using the Act’s provisions.

MCA 2005 also created two public bodies to support and implement the statutory framework:

(1)             a superior court of record, the Court of Protection, with jurisdiction relating to the whole of MCA 2005 and its own procedures and nominated judges; and

(2)             a Public Guardian, whose office is the registering authority for LPA’s and deputies, with responsibility to supervise deputies and respond to any concerns raised about donees or deputies.’

Paragraphs 2.3 – 2.6 Court of Protection Practice 2017 edited by Gordon R Ashton OBE and published by Lexis Nexis.

The five fundamental principles 

The five fundamental principles are set out in s.1:

‘(1)      The following principles apply for the purposes of this Act. 

(2)       A person must be assumed to have capacity unless it is established that he lacks capacity. 

(3)       A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. 

(4)       A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 

(5)       An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. 

(6)       Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.’

People who lack capacity

s.2 provides,

‘(1)      For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. 

(2)       It does not matter whether the impairment or disturbance is permanent or temporary. 

(3)       A lack of capacity cannot be established merely by reference to— 

(a)       a person’s age or appearance, or 

(b)       a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. 

(4)       In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities. 

(5)       No power which a person (“D”) may exercise under this Act— 

(a)       in relation to a person who lacks capacity, or 

(b)       where D reasonably thinks that a person lacks capacity, 

is exercisable in relation to a person under 16. 

(6)       Subsection (5) is subject to section 18(3).’

Inability to make decisions

s.3 provides, 

‘(1)      For the purposes of section 2, a person is unable to make a decision for himself if he is unable— 

(a)       to understand the information relevant to the decision, 

(b)       to retain that information, 

(c)       to use or weigh that information as part of the process of making the decision, or 

(d)       to communicate his decision (whether by talking, using sign language or any other means). 

(2)       A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). 

(3)       The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. 

(4)       The information relevant to a decision includes information about the reasonably foreseeable consequences of— 

(a)       deciding one way or another, or 

(b)       failing to make the decision.’ 

Best interests

s.4 provides,

‘(1)      In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of— 

(a)       the person’s age or appearance, or 

(b)       a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests. 

(2)       The person making the determination must consider all the relevant circumstances and, in particular, take the following steps. 

(3)       He must consider— 

(a)       whether it is likely that the person will at some time have capacity in relation to the matter in question, and 

(b)       if it appears likely that he will, when that is likely to be. 

(4)       He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. 

(5)       Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death. 

(6)       He must consider, so far as is reasonably ascertainable— 

(a)       the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), 

(b)       the beliefs and values that would be likely to influence his decision if he had capacity, and 

(c)       the other factors that he would be likely to consider if he were able to do so. 

(7)       He must take into account, if it is practicable and appropriate to consult them, the views   of— 

(a)       anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, 

(b)       anyone engaged in caring for the person or interested in his welfare, 

(c)       any donee of a lasting power of attorney granted by the person, and 

(d)       any deputy appointed for the person by the court, 

as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6). 

(8)       The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which— 

(a)       are exercisable under a lasting power of attorney, or 

(b)       are exercisable by a person under this Act where he reasonably believes that another person lacks capacity. 

(9)       In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned. 

(10)     “Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life. 

(11)     “Relevant circumstances” are those— 

(a)       of which the person making the determination is aware, and 

(b)       which it would be reasonable to regard as relevant.’ 

Assessment of mental capacity

In case of dispute, capacity is a question of fact for the court to decide on the balance of probabilities with a presumption of capacity. The opinions of professionals will be admitted as ‘expert’ evidence but considered alongside factual evidence from those who know the individual and will only be persuasive if the experts have been given all relevant information and applied the appropriate legal test.

The Code of Practice

The Code of Practice is statutory guidance in that MCA 2005 imposes a duty on certain people to ‘have regard’ to any relevant Code’ when acting in relation to a person lacking capacity. The specified people are those acting in one or more of the following ways:

(i)       as a donee of an LPA;

(ii)      as a deputy appointed by the court;

(iii)     as a person carrying out research under the Act;

(iv)     as an IMCA;

(v)      in exercising the procedures authorising deprivation of liberty;

(vi)     as a representative of someone deprived of their liberty;

(vii)    in a professional capacity; and/or

(viii)   for remuneration.

The statutory duty to have regard to the Code therefore applies to those exercising formal powers or duties under MCA 2005, and to professionals (including lawyers, health and social care professionals) and other acting for remuneration (such as paid carers).

The Code was formally issued in April 2007 and came fully into effect on 1 October 2007 as the statutory guidance for the entire MCA 2005 as originally enacted. A supplement to the Code has since been issued separately to deal with the deprivation of liberty provisions inserted into MCA 2005 by the Mental Health Act 2007, which came into effect in April 2009.

There is no liability for breach of the Code itself, but compliance or non-compliance may be an element in deciding the issue of liability for breach of some other statutory or common law duty. Breach might also be relevant to ac action in negligence or to a criminal prosecution.

Presumption of capacity

The starting point for assessing someone’s capacity to make a particular decision is always the assumption that the individual does have capacity.

Paragraph 2.5 of the Code states,

‘Some people may need help to be able to make a decision or to communicate their decision. However, this does not necessarily mean that they cannot make that decision – unless there is proof that they do lack capacity to do so.’

Capacity must then be judged in relation to the particular decision at the time that decision needs to be made, and the presumption of capacity may only be rebutted if there is acceptable evidence that the person is incapable of making the decision in question.

Where the question of capacity is to be decided in proceedings before the Court of Protection, it has been held that the threshold for engagement of the court’s powers (under MCA 2005, s.48) is lower than that of evidence sufficient in itself to rebut the presumption of capacity. The proper test in such circumstances is whether there is evidence giving good cause for concern that the person may lack capacity in some relevant regard.

Legal test

MCA 2005, s.2 sets out the definition of a person who lacks capacity. MCA 2005, s.3 sets out the test for assessing whether a person is unable to make a decision and therefore lacks capacity. By applying these together, MCA 2005 adopts a functional approach to defining capacity, requiring capacity to be assessed in relation to each particular decision at the time the decision needs to be made, and not the person’s ability to make decisions generally.

MCA 2005, s.2(1) sets out the definition of a person who lacks capacity as follows:

‘For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’

Capacity is therefore both decision-specific and time-specific.

The inability to make the particular decision in question must be because of ‘an impairment of, or a disturbance in the functioning of, the mind or brain’ (i.e. a mental disability or disorder) and the causal link (that the impairment or disturbance directly causes the inability to make the decision) must be clearly demonstrated. It does not matter whether the impairment or disturbance is permanent or temporary. A person can lack capacity to make a decision even if the loss of capacity is partial or temporary or if his or her capacity fluctuates. In particular a person may lack capacity in relation to one matter but not in relation to others.

In PC & Anor v City of York Council [2013] COPLR 409, the Court of Appeal clarified that , unless the common law and/or the MCA 2005 expressly state otherwise, capacity is to be assessed in relation to the specific decision. It will depend upon the character of the particular decision as to whether the information relevant to that decision relates to an act, to a particular person or to a specific set of circumstances.

Lord Justice McFarlane stated the following principles:

‘PART 1
PERSONS WHO LACK CAPACITY
The principles

1 The principles
(1)     The following principles apply for the purposes of this Act.

(2)     A person must be assumed to have capacity unless it is established that he lacks capacity.

(3)     A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4)     A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5)     An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6)     Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Preliminary

2 People who lack capacity
(1)     For the purposes of this Act, a person lacks capacity in relation to a
matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2)     It does not matter whether the impairment or disturbance is permanent or temporary.

(3)     A lack of capacity cannot be established merely by reference to—

(a)     a person’s age or appearance, or

(b)     a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

(4)     In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

(5)     No power which a person (“D”) may exercise under this Act—

(a)     in relation to a person who lacks capacity, or

(b)     where D reasonably thinks that a person lacks capacity,
is exercisable in relation to a person under 16.

(6)     Subsection (5) is subject to section 18(3).

3        Inability to make decisions
(1)     For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a)     to understand the information relevant to the decision,

(b)     to retain that information,

(c)     to use or weigh that information as part of the process of making the decision, or

(d)     to communicate his decision (whether by talking, using sign

language or any other means).

(2)     A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3)     The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4)     The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a)     deciding one way or another, or

(b)     failing to make the decision.

17 Section 16 powers: personal welfare
(1)     The powers under section 16 as respects P’s personal welfare extend
in particular to—

(a)     deciding where P is to live;

(b)     deciding what contact, if any, P is to have with any specified persons;

(c)     making an order prohibiting a named person from having contact with P;

(d)     giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;

(e)     giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility.

(2)     Subsection (1) is subject to section 20 (restrictions on deputies).

At paragraphs 16 and 17 of his judgment, Hedley J correctly summarised the statutory provisions and identified the function of the court as being the application of the statutory scheme to the facts of each particular case. Paragraphs 19 to 21 set out the judge’s analysis of the capacity issue and are plainly central to this appeal:

’19.    There has been considerable debate as to whether the issue of capacity to decide on contact should or should not be person specific, that is to say whether it should or should not in this case focus on NC. This is in part derived from the terms of section 17 of the Act. However, it seems to me that what the statute requires is the fixing of attention upon the actual decision in hand. It is the capacity to take a specific decision, or a decision of a specific nature, with which the Act is concerned. Sometimes that will most certainly be generic. Can this person make any decision as to residence or contact or care by reason of, for example, their dementia? Or does this person have any capacity to consent to sexual relations by reason of an impairment of mind which appears to withdraw all the usual restraints that are in place? Such generic assessments will often by necessary in order to devise effective protective measures for the benefit of the protected person, but it will not always be so. There will be cases, for example, in relation to medical treatment where the attention is centred not only on a specific treatment or action but on the specific circumstances prevailing at the time of the person whose decision making capacity is in question. The hysteric resisting treatment in the course of delivering a child is an example from my own experience. Accordingly, I see no reason why in the construction of the statute in any particular case the question of capacity should not arise in relation to an individual or in relation to specific decision making relating to a specific person. In my judgment, given the presumption of capacity in section 1(2) this may indeed be very necessary to prevent the powers of the Court of Protection, which can be both invasive and draconian, being defined or exercised more widely than is strictly necessary in each particular case.

  1. It follows that in my judgment, rather than making a general finding about whether the question to be considered should or should not involve in it any particular individual, my task, as I understand it, is to articulate the question actually under discussion in the case and to apply the statutory capacity test to that decision. The question in this case surely is this: should PC take up married life with NC now that, in terms of imprisonment and licence, he is free to do so? It is a decision which any wife in her position would be required to take and it is a decision that does not admit of only one answer. Thus, the question of capacity is important. All the other issues raised, care, residence and contact, are peripheral, save insofar as they bear on the question of the resumption of the long interrupted cohabitation of PC and NC. Although that is a narrow issue it is, in my judgment, a seriously justiciable issue to which the court should give its proper attention and make a decision.
  2. In coming to dealing with the question of capacity on that central question I start by acknowledging three things. The first is that PC must be taken to have had capacity to marry in 2006. Secondly, she must be taken to have capacity to understand the obligations of marriage. Thirdly, the presumption of capacity under section 1(2) must, on the evidence that I have heard, prevail in relation to all issues other than the resumption of cohabitation with NC and its implementation. Then I need to say that the question that I have posed is narrower and beyond the question of the obligations of marriage. Any woman, however conscious of those obligations, nevertheless in the circumstances of PC and NC, would have a fresh and particular decision to make as to which there is more than one available answer. In the end I have concluded on the evidence that PC does not have the capacity to make the identified decision. She is undoubtedly within section 2(1) requirements of impairment. Applying the section 3(1) test I am not satisfied that she is able to understand the potential risk that NC presents to her and that she is unable to weigh the information underpinning the potential risk so as to determine whether or not such a risk either exists or should be run, and should, therefore, be part of her decision to resume cohabitation. I am satisfied too that that significantly relates to the impairment in section 2(1), though I do accept that there is an element in it of an instinctive impatience simply to bring about the desired result whatever, which, if it stood alone, would simply be an unwise decision. Accordingly, I find that in relation to the decision as to whether to resume cohabitation with NC, PC lacks capacity so to decide and thus the jurisdiction of the Court of Protection is engaged in respect of that particular issue.’
  3. On the basis of that finding, Hedley J went on to determine that PC’s welfare was best served by resuming cohabitation with NC within a scheme of monitoring and support provided by the Local Authority as approved by the Court of Protection.

Ground 3A: Every decision to which MCA 2005, Part 1 applies must be act-specific and not person-specific
19.     This submission is a direct challenge to the approach taken by Hedley J
in the following passages from paragraph 19 of the judgment:

‘… it seems to me that what the statute requires is the fixing of attention upon the actual decision in hand. It is the capacity to take a specific decision, or a decision of a specific nature, with which the Act is concerned. … Accordingly, I see no reason why in the construction of the statute in any particular case the question of capacity should not arise in relation to an individual or in relation to specific decision making relating to a specific person.’

In relation to ground 3A, Mr Bowen makes the following core points:

  1. Whether an act-specific or a person-specific approach is adopted, the same approach should apply across the board to all relevant domains including marriage, resumption of marriage, consent to sexual relations, care, contact and residence; absurd consequences would flow from any other conclusion.
  2. There is clear and settled authority that both capacity to marry and capacity to engage in sexual relations are act, and not person, specific.
  3. If points (a) and (b) are made out, then it must follow that the act-specific approach to marriage and sexual relations must be applied to every other relevant domain.
  4. The solid ground within this part of Mr Bowen’s submission is (b): there is indeed clear and settled authority that capacity to marry is act, rather than person, specific.  There is also some relatively solid ground for holding that the same is also true with respect to consent to sexual relations. It is therefore not necessary to do more than refer to the key authorities.
  5. In Sheffield City Council v E [2005] Fam 326, a case prior to the MCA 2005 under the inherent jurisdiction, Munby J, as he then was, conducted an exhaustive review of the authorities on capacity to marry and concluded at paragraph 85:

‘There is, so far as I can see, no hint in any of the cases on the point – and I have gone through them all – that the question of capacity to marry has ever been considered by reference to a person’s ability to understand or evaluate the characteristics of some particular spouse or intended spouse. In all the cases, as we have seen, the question has always been formulated in a general and non-specific form: Is there capacity to understand the nature of the contract of marriage?’

Later, at paragraph 102, Munby J concludes:

‘In relation to her marriage the only question for the court is whether E has capacity to marry. The court is not concerned – has no jurisdiction – to consider whether it is in E’s best interests to marry or to marry S. The court is concerned with her capacity to marry, not with the wisdom of her marriage in general or her marriage to S in particular.’

  1. The Sheffield decision has subsequently been followed at first instance in M v B, A and S (by the Official Solicitor) [2005] EWHC 1681 (Fam) ; [2006] 1 FLR 117 and A, B and C v X and Z [2012] EWHC 2400 (COP). Insofar as the Sheffield decision relates to capacity to marriage it has not been challenged in the present appeal and I see no reason not to accept Munby J’s conclusion, based as it is upon established authority, that capacity to marry is to be assessed in general and as a matter of principle, and not by reference to any particular prospective marriage. It is, as Mostyn J neatly put it in D Borough Council v B [2012] Fam 36; [2011] EWHC 101 (Fam), status-specific and not spouse-specific. The subsequent implementation of the MCA 2005 does not establish any basis for questioning the continued applicability of a general and non-specific approach to capacity to marry in proceedings under the Act.
  2. In Local Authority X v MM [2007] EWHC 2003 (Fam) [‘MM’] Munby J applied the same approach, for the same reasons, to the capacity to consent to sexual relations. At paragraph 86 he said:

‘The question [capacity to consent to sexual relations] is issue specific, both in the general sense and, as I have already pointed out, in the sense that capacity has to be assessed in relation to the particular kind of sexual activity in question. But capacity to consent to sexual relations is, in my judgment, a question directed to the nature of the activity rather than to the identity of the sexual partner.’

  1. Munby J’s approach in MM was doubted by Baroness Hale in R v Cooper [2009] UKHL 42; [2009] 1 WLR 1786 in the context of a criminal prosecution for an offence of ‘sexual activity with a person with a mental disorder impeding choice’ contrary to Sexual Offences Act 2003, s 30. The House of Lords held that the Court of Appeal had unduly limited the scope of s 30(1) of the 2003 Act by holding that a lack of capacity to choose whether or not to agree to sexual activity cannot be person or situation specific. At paragraph 27 of R v Cooper, and in the context of the 2003 Act, Baroness Hale stated:

‘My Lords, it is difficult to think of an activity which is more person and situation specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place. Autonomy entails the freedom and the capacity to make a choice of whether or not to do so.’

Earlier, at paragraph 7, Baroness Hale had doubted the correctness of Munby J’s approach in MM but at paragraph 25 she observed that ‘it is not for us to decide whether Munby J was right or wrong about the common law. The 2003 Act puts the matter beyond doubt.’

  1. Subsequently Mostyn J in D Borough Council v B [2012] Fam 36; [2011] EWHC 101 (Fam) has held that the House of Lords decision in R v Cooper is limited to the application of the test in s 30 of the 2003 Act and is not inconsistent with the approach of Munby J in MM. Mostyn J therefore held that in proceedings under the MCA 2005 capacity to consent to sexual relations is act-specific and not partner-specific.
  2. For the purposes of the present appeal it is not necessary to resolve any apparent doubt over the correctness of Munby J’s decision in MM and that of Mostyn J in D Borough Council v B. Whilst consent to sexual relations forms part of the wider decision by a spouse whether or not to take up full cohabitation with her husband, the two decisions are not precisely the same. The fact that one may be act-specific does not mean that the other, wider, decision cannot be person-specific. In any event, for the purposes of this part of the Official Solicitor’s argument it is sufficient that one major category of decision, namely capacity to marry, is act, rather than person, specific.
  3. On the basis that at least one, if not more, categories of decision making capacity is act specific, Mr Bowen submits that the same must apply to decision making capacity in all other relevant domains (submission (a) in paragraph 20 above). To make good his argument Mr Bowen turns first to the description of the approach to capacity given by Munby J in paragraph 19 of his judgment in the Sheffield case:

‘The general rule of English law, whatever the context, is that the test of capacity is the ability (whether or not one chooses to exercise it) to understand the nature and quality of the transaction. … But on this very general level of abstraction – that capacity is dependent upon the ability to understand the nature and quality of the transaction – the same basic principle applies whether the question is as to capacity to enter into a contract, to execute a deed, to marry, to make a will, to conduct litigation, to consent to a decree of divorce, or to consent to medical treatment.’

Later, at paragraphs 134 and 135, Munby J identified the elements necessary for a person to have sufficient understanding of a problem in order to have capacity to decide what to do about it, namely the ability to (i) recognise the problem, (ii) obtain, take in, comprehend and retain information about it, (iii) believe that information and (iv) evaluate that information so as to arrive at a solution. He held that those rather abstract terms applied to all ‘problems’ and to all ‘decisions’, irrespective of whether they related to capacity to marry or some other topic.

  1. Mr Bowen then refers to the range of decisions that may fall to be considered by the court and he submits, correctly, that a different level of capacity may be required depending upon the nature of the decision being taken, for example there is a difference between deciding to go to a foreign country for a short holiday or deciding to emigrate. Despite these differences, he argues that, stripped of the factors that distinguish one decision from another, the test for capacity in all domains of decision making is the same.
  2. The Official Solicitor’s submission is therefore that there can be no warrant for adopting a person-specific approach to the assessment of capacity in one context, but not in another. It is argued that this is particularly so in closely related domains such as marriage, sexual relations, care, contact and residence. How can it be, goes the argument, that A’s capacity to decide whether or not to have contact with or reside with Z can be related specifically to individual features relevant to Z, yet her capacity to marry is related solely to the status of being married, without any reference to Z as her prospective spouse? Either the specific person or circumstances are relevant to all categories of decision or they are relevant to none.
  3. Against this Mr Conrad Hallin on behalf of the Local Authority makes the simple but forceful submission that the statutory test for capacity is ‘decision’ specific, rather than being ‘person’ or ‘act’ specific. In so doing he fully supports the approach taken by Hedley J in the judgment under consideration. Whilst readily conceding that capacity to marry relates to the status of marriage, and is blind to the specific identity of any particular spouse, where the issue is not one of status, but arises from particular circumstances, Mr Hallin submits that without grounding the decision making in a particular factual context, the question of capacity does not gain any traction and is effectively meaningless. To illustrate the point reference is made to MCA 2005, s 3(1)(a) which requires determining whether the individual is able to ‘understand the information relevant to the decision’; Mr Hallin argues that that requirement must surely, in the context of the specific decision before the court, refer to information relevant to PC taking up residence with NC in the light of his conviction and the potential that he therefore has for future abusive behaviour.
  4. In developing his submission, Mr Hallin goes back to what he submits is the plain meaning of the statute which, time and again, in ss 1, 2 and 3 refers to the capacity of a person ‘to make a decision’ in relation to ‘a matter’ at the ‘material time’. There is no need, he argues, to modify or alter the statutory language by tying it to, or forbidding, reference to particular types of decision. On the contrary, the open and flexible wording of these provisions allows them to be applied to the full range of decisions from the most trivial to the most profound.
  5. With respect to the focus on status in relation to capacity to marry and the common law approach to capacity to engage in sexual relations, Mr Hallin points to the fact that the MCA 2005 takes a particular course with respect to these and other similar issues in s 27 (reproduced at paragraph 4 above) where, for example, in s 27(1)(a) the court is not permitted to decide to consent to marriage or a civil partnership on behalf of a person. The topics that are hived out by s 27 are therefore, it is said, in something of an exceptional category when set against other decisions.
  6. Finally, Mr Hallin points to the decision specific nature of MCA 2005, s 17 which expressly extends the scope of personal welfare decisions that may be taken by the court to ‘deciding what contact, if any P is to have with any specified persons’ or ‘making an order prohibiting a named person from having contact with P’.
  7. Drawing these matters together, I am clear that the submissions made by Mr Hallin are sound and that the course adopted by Hedley J at paragraph 19 on the nature of the jurisdiction under MCA 2005 is the correct one. The determination of capacity under MCA 2005, Part 1 is decision specific. Some decisions, for example agreeing to marry or consenting to divorce, are status or act specific. Some other decisions, for example whether P should have contact with a particular individual, may be person specific. But all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, ss 1 to 3 which requires the court to have regard to ‘a matter’ requiring ‘a decision’. There is neither need nor justification for the plain words of the statute to be embellished. I do not agree with the Official Solicitor’s submission that absurd consequences flow from a failure to adopt either an act-specific or a person-specific approach to each category of decision that may fall for consideration. To the contrary, I endorse Mr Hallin’s argument to the effect that removing the specific factual context from some decisions leaves nothing for the evaluation of capacity to bite upon. The MCA 2005 itself makes a distinction between some decisions (set out in s 27) which as a category are exempt from the court’s welfare jurisdiction once the relevant incapacity is established (for example consent to marriage, sexual relations or divorce) and other decisions (set out in s 17) which are intended, for example, to relate to a ‘specified person’ or specific medical treatments.
  8. At the core of Mr Bowen’s argument is the submission summarised at paragraphs 28 and 29 which, correctly, identifies Munby J’s description of the approach to capacity in the Sheffield case, which is plainly a forerunner of the statutory test in MCA 2005, Part 1, as applying to all problems or decisions, irrespective of the character of the topic falling for consideration. In the same manner the regime and structure established in MCA 2005, ss 1 to 3 applies to all decisions, whatever their character. Nothing in the words of Munby J which are relied upon indicates that the test for capacity is either to be act-specific or person-specific for all decisions. Munby J is not holding that all must be approached on the issue specific basis identified for marriage and sexual relations; indeed his discrete description of the approach in those two categories would be meaningless if he intended to hold that every single type of decision should also be issue specific. In this respect, the Sheffield decision is at least irrelevant to the submission that Mr Bowen seeks to establish; it is, in fact, a plain statement to the contrary and supports the ‘decision-specific’ approach set out in the MCA 2005, which is that the same regime for evaluating capacity is to be applied to each and every individual decision which falls for consideration.
  9. The central provisions of the MCA 2005 have been widely welcomed as an example of plain and clear statutory language. I would therefore deprecate any attempt to add any embellishment or gloss to the statutory wording unless to do so is plainly necessary. In this context the reference within the Official Solicitor’s argument to ‘domains’ of decision-making is unwelcome and unnecessary. The court is charged, in relation to ‘a matter’, with evaluating an individual’s capacity ‘to make a decision for himself in relation to the matter’ (s 2(1)); no need has been identified for grouping categories of ‘matter’ or ‘decision’ into domains, save where to do so has been established by common law or by the express terms of the MCA 2005 (for example, capacity to marry). It follows that the Official Solicitor’s ground (i), which relies upon evaluation with respect to relevant ‘domains’, and which was not pursued during oral argument, cannot succeed.
  10. I do not therefore accept Mr Bowen’s submission that there is no basis for the court to adopt an act specific approach to the question of capacity to marry but to personalise the question of whether there is capacity to decide whether or not to have contact with, or reside with, a particular spouse. One, capacity to marry, involves understanding matters of status, obligation and rights, the other, contact and residence, may well be grounded in a specific factual context. The process of evaluation of the capacity to make the decision must be the same, but the factors to be taken into account will differ. As I have already observed, this distinction is expressly reflected in MCA 2005, s 17 and s 27 and, indeed, it is common place for the Court of Protection to be asked, for example in a case of dementia, to regulate the contact that one spouse may have with another.
  11. It follows that I accept Mr Hallin’s submission that the reference in MCA 2005, s 3(1)(a) to the ability to ‘understand the information relevant to the decision’ in this particular case must include reference to information specifically relevant to NC in the light of his conviction and its potential impact on the decision before the court.
  12. Hedley J was therefore correct in the approach that he adopted in paragraph 19 of his judgment by fixing his attention ‘upon the actual decision in hand’ with the result that ground of appeal 3A, as I have cast it, must fail.’

The definition of capacity in MCA 2005 is intended to build on, rather than contradict, the terms of pre-existing common law tests. The Code suggests, that as cases come before the court, judges may adopt the statutory definition if they see fit and use it to develop common law rules in particular cases.

The two-stage test of capacity

In applying the test for capacity set out in ss 2-3 of the MCA 2005 to determine whether an individual has capacity to make a particular decision, the Code advises that a two-stage procedure must be applied:

(i)       it must be established that there is an impairment of, or disturbance in the functioning of, the person’s mind or brain; and

(ii)      it must be established that the impairment or disturbance is sufficient to render the person unable to make that particular decision at the relevant time.

In all cases, the ‘causative nexus’ is crucial. Indeed it is sufficiently important that it may – in practice- be prudent to proceed on the basis that there is a three-stage test. Whether the diagnostic aspect is considered before the functional aspect, or vice versa, the final question must always be whether there is a sufficient causative link between the identified impairment or disturbance and the identified functional inability to take the decision in question.

Inability to take a decision

MCA 2005, s.3 states,

‘(1)    For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a)     to understand the information relevant to the decision,

(b)     to retain that information,

(c)     to use or weigh that information as part of the process of making the decision, or

(d)     to communicate his decision (whether by talking, using sign language or any other means).

(2)     A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3)     The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4)     The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a)     deciding one way or another, or

(b)     failing to make the decision.’

The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or of failure to make the decision. An explanation of all relevant information must have been given to the person using the means of communication that is most appropriate for their particular circumstances. Retaining information for even a short time may be adequate in the context of some decisions – it will depend upon what is necessary for the decision in question. The focus must be on decision-making (for example, whether the person can weigh up any risks involved) not the outcome. The person may be assisted in that process by professional advice or support from family or friends. Where an individual cannot communicate their decision in any way, by talking, using sign language or any other means, the Act states that the individual is unable to make a decision for themselves.

Burden of proof

If a question of capacity comes before a court, the burden of proof is generally on the person who is seeking to establish a lack of capacity and the matter is decided according to the usual civil standard, the balance of probabilities. 

Deprivation of liberty

With effect from 1 April 2009, the MCA 2005 was substantively amended by the MHA 2007 to provide mechanisms for authorising, subject to safeguards, the deprivation of liberty of a person who cannot consent when that is necessary in their best interests for their care or treatment. The ‘deprivation of liberty safeguards’ scheme (known as the ‘DOLS Scheme’) was introduced , which enables hospitals and care homes to obtain legal authority to deprive individuals of their liberty under the MCA 2005 without having to obtain an order from the court. The purpose of the scheme is to ensure that the relevant person is assessed at least annually by two suitably qualified and independent professionals who must certify that the care and treatment arrangements for the incapacitated person are in their best interests, necessary to protect them from harm and proportionate.

The DOLS Scheme does not apply to incapacitated persons deprived of their liberty in a placement other than a hospital or a care home registered with the Care Quality Commission. In these circumstances the Court of Protection has the power by making an order under MCA 2005, s.16(2)(a) to make the decision which has the effect of lawfully depriving a person of their liberty. It cannot however do so if the patient is ineligible  to be deprived of their liberty because they are or should be detained under the Mental Health Act powers.

The managing authority of a hospital or care home is able lawfully to deprive a patient or resident of their liberty if they are detained for the purpose of being given care or treatment and a standard or urgent authorisation is in force, which related to the relevant person and to the hospital or care home in which they are detained. In this event, the managing authority is put in the same position as if the resident had capacity to consent and had consented to their detention (no liability is incurred for the deprivation of liberty but there is no protection for any negligence).

It is unlawful for a public authority to use the procedure provided for under Schedule A1 to foreclose a genuine dispute about where it is in the incapacitated adult’s best interests to reside.

The DOLS regime applies when there may be a deprivation of liberty in the sense that the regime applies when it appears that judged objectively there is a risk that cannot sensibly be ignored that the relevant circumstances amount to a deprivation of liberty.

Before a standard authorisation can be obtained, the supervisory body arranges for assessments to be carried out to determine whether the following requirements are met in relation to the detained resident:

  • the person must be 18 or over;
  • the person must be suffering from a mental disorder within the meaning of the MHA 1983;
  • the person must lack capacity in relation to the question whether or not they should be accommodated in the hospital or care home for the purpose of being given the care or treatment concerned;
  • it must be in the person’s best interests to be a detained resident and the deprivation of liberty must be necessary to prevent harm and be a proportionate response to the likelihood and seriousness of that harm; and
  • the patient is not ineligible to be detained under DOLS.

MCA 2005, Sch1A sets out how the MCA 2005 and MHA 1983 work together in this respect. As a starting point it is important to be aware that if P is ineligible for detention under DOLS, the Court of Protection cannot make an order depriving P of their liberty. If P is ineligible it may be possible for the High Court to deprive P of their liberty using the inherent jurisdiction.

Court of Protection Practice 2017, paragraphs 7.7, 7.8, 7.31, 7.33, and 7.34.

In Hillingdon London Borough Council v Neary [2011] Peter Jackson J stated,

‘(1)    The purpose of DOL authorisations and of the Court of Protection

Significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection, where decisions can be taken as a matter of urgency where necessary. The DOL scheme is an important safeguard against arbitrary detention. Where stringent conditions are met, it allows a managing authority to deprive a person of liberty at a particular place. It is not to be used by a local authority as a means of getting its own way on the question of whether it is in the person’s best interests to be in the place at all. Using the DOL regime in that way turns the spirit of the Mental Capacity Act 2005 on its head, with a code designed to protect the liberty of vulnerable people being used instead as an instrument of confinement. In this case, far from being a safeguard, the way in which the DOL process was used masked the real deprivation of liberty, which was the refusal to allow Steven to go home.

(2)     Decision-making

Poor decision-making processes often lead to bad decisions. Where a local authority wears a number of hats, it should be clear about who is responsible for its direction. Here, one sub-department of Hillingdon’s adult social services provides social work support and another is responsible for running facilities such as the support unit. At the same time, senior social workers represent the supervisory body that determines whether or not a DOL authorisation should be granted. In that situation, welfare planning should be directed by the team to which the allocated social worker belongs, although there will of course be the closest liaison with those who run the support facilities. The tail of service provision, however expert and specialised, should not wag the dog of welfare planning. Unfortunately, this case was characterised either by an absence of decision-making or by a disorganised situation where nobody was truly in charge and it was consequently possible for nobody to take responsibility. At various stages during the hearing, I asked Hillingdon witnesses to explain who was answerable for various actions, but no-one could say. Even when its position came under strong and public challenge towards the end of the year, and when at least one very senior social work manager had serious concerns about what was happening, this had no effect on the corporate position.

(3)     The responsibilities of the supervisory body

The granting of DOL standard authorisations is a matter for the local authority in its role as a supervisory body. The responsibilities of a supervisory body, correctly understood, require it to scrutinise the assessment it receives with independence and a degree of care that is appropriate to the seriousness of the decision and to the circumstances of the individual case that are or should be known to it. Where, as here, a supervisory body grants authorisations on the basis of perfunctory scrutiny of superficial best interests assessments, it cannot expect the authorisations to be legally valid.’

Under MCA 2005, s.4A (inserted by MHA 2007, s.50) the Court of Protection has the power by making an order under MCA 2005, s.162(a) to make the decision which has the effect of lawfully depriving a person of their liberty. It cannot however do so if the patient is ineligible to be deprived of their liberty because they are or should be detained under the Mental Health Act powers.

Where the Court of Protection is considering making a welfare order under s.16(2)(a), it will need to consider: (1) whether the individual is being deprived of his or her liberty; and (2) how such deprivation of liberty is to be authorised thereafter – which depends on whether the person is detained in a hospital or care home, and hence whether they are within the scope of Schedule A1 to MCA 2005. If they are then the appropriate course of action is for the Court to authorise the deprivation of liberty by way of a s.16(2)(a) decision for a limited period of time to enable the grant of a standard authorisation by the relevant supervisory body.

Part 2 of Practice Direction 10AA (which supplements Part 10A of the COPR 2007):  https://www.judiciary.gov.uk/wp-content/uploads/2015/06/cop-pd-10a-deprivation-of-liberty-280815.pdf

sets out the procedure to be followed when making an application to the court under s.16(2)(a) to authorise a deprivation of liberty under s.4A(3) and (4). Such applications are excluded from the Case Management Pilot (see para 3.1 of the Case Management Pilot Practice Direction).

A person who has been deprived of their liberty under a DOLS authorisation, or their representative, may apply to the Court under MCA s.21A for a review of the lawfulness of their decision.

Court of Protection Practice 2017, paragraphs 7.79 to 7.95.

Court of Protection

Introduction

The Court of Protection deals with issues relating to people who cannot make decisions for themselves because, for some reason, they lack the capacity to do so. However the court has no jurisdiction to resolve disputes between two people, nor to order a local authority to provide a particular care plan, or to resolve a dispute between two authorities if there is an argument as to where the incapacitated person’s ordinary residence lies. Anyone can make an application to the Court of Protection.

The court’s jurisdiction derives from the Mental Capacity Act 2005 (‘MCA 2005’).

The range of orders that can be made include:

  • Declarations
  • Court orders and decisions under s.16;
  • Appointing deputies under s.16;
  • Powers in relation to Lasting Powers of Attorney;
  • Powers in relation to Advance Decisions to Refuse Treatment;
  • Powers in relation to Enduring Powers of Attorney;
  • Other powers; and
  • Interim Orders.

Duties

‘The Court is expected to further the overriding objective by actively managing cases, which means encouraging the parties to co-operate with each other in the conduct of the proceedings. It should identify the issues at an early stage, including who should be the parties, decide the way in which P will participate and then decide which of those issues will require a full investigation and hearing, and those which do not, and the procedure to be followed. In the process the Court will decide the order in which issues are to be resolved and fix timetables or otherwise control the progress of the case. The parties are required to help the Court to further the overriding objective.’

Court of Protection Practice 2017, paragraph 8.36.

Allocation to case pathways

The COPR 2017 states,

‘3.9.

(1)     This rule provides for the allocation of cases to case pathways.

(2)     There are three case pathways—

(a)     the Personal Welfare Pathway;

(b)     the Property and Affairs Pathway;

(c)     the Mixed Welfare and Property Pathway.

(3)     Each case shall on issue be allocated to one of the three case pathways unless (subject to paragraph (5)) it is in an excepted class of case.

(4)     Excepted classes of case may be specified in a practice direction.

(5)     The court may direct that a case shall be allocated to a case pathway notwithstanding that it is in an excepted class of cases.

(6)     A practice direction may make provision for—

(a)     the scope of each case pathway; and

(b)     how cases in each case pathway are to be managed.

(Practice Direction 3B makes provision in relation to the case pathways and excepted classes of case.)’

Practice Direction 3B

This practice direction supplements Part 3 of the Court of Protection Rules 2017.

Rule 9.12(5) and (7) do not apply where a case is allocated to a case pathway.

In applying this practice direction, the parties must have regard to any guidance issued in relation to allocation of Court of Protection cases to Tier 3 Judges.

Part 1 – Scope of the case management pathways

1.1     Rule 3.9 provides for each case which is started in the CoP to be allocated to one of three case management pathways on issue, unless the case falls within an excepted class of cases specified in a practice direction. The excepted classes of case which are specified for this purpose are —

(a)     uncontested applications;

(b)     applications for statutory wills and gifts;

(c)     applications made by the Public Guardian;

(d)     applications in Form COPDOL11;

(e)     applications in Form DLA; and

(f)      Schedule 3 applications (under Part 23 of the Rules).

1.2     The scope of the pathways is as follows

THE PERSONAL WELFARE PATHWAY (Part 2 of this practice direction)

This will be the normal pathway for a case in which an application is made to the court to make or authorise one or more decisions and/or actions and/or declarations relating to P’s personal welfare only.

THE PROPERTY AND AFFAIRS PATHWAY (Part 3 of this practice direction)

This will be the normal pathway for a case in which an application is made to the Court to make or authorise one or more decisions and/or actions and/or declarations relating to P’s property and financial affairs only.

THE MIXED WELFARE AND PROPERTY PATHWAY (Part 4 of this practice direction)

This will be the normal pathway for a case in which the court is to be asked to make or authorise one or more decisions and/or actions and/or declarations relating not only to P’s property and financial affairs but also P’s personal welfare.

Part 2 – The Personal Welfare Pathway

2.1     The Personal Welfare Pathway comprises six stages

(a)     The pre-issue stage (see paragraph 2.2);

(b)     The point of issue of the application (see paragraph 2.3);

(c)     Case management on issue (see paragraph 2.4);

(d)     The Case Management Conference (see paragraph 2.5);

(e)     The Final Management Hearing (see paragraph 2.6);

(f)      The Final Hearing (see paragraph 2.7).

2.2     THE PRE-ISSUE STAGE

(1)     In all cases

The applicant must take all necessary steps to  —

(a)     identify all potential respondents to the proceedings which the applicant proposes to start, and any other interested parties;

(b)     notify P (where possible) and the potential respondents and other interested parties identified in accordance with sub-paragraph (a) of the applicant’s intention to start the proceedings unless the matters which the court would be asked to determine can be resolved without the need for proceedings;

(c)     explain to those notified in accordance with sub-paragraph (b) the nature of the proceedings which the applicant proposes to start, and the matters which the court would be asked to determine in those proceedings;

(d)     set out the applicant’s proposals for resolving those matters without the need for proceedings;

(e)     engage with those notified in accordance with sub-paragraph (b) to resolve those matters as far as possible;

(f)      ensure, where it is not possible to resolve those matters without starting proceedings, that all the documents and information required by paragraph 2.3 will be ready to be included with the application.

(2)     Additionally, in urgent cases

Where the applicant intends to make an urgent or interim application, the applicant must consider —

(a)     why the case is urgent and what the consequences will be if the case is not treated as  urgent;

(b)     if any of the steps in paragraph 2.2(1) cannot be taken, why this is the case and what the consequences would be if those steps were taken;

(c)     whether there is any specific deadline, and what that deadline is;

(d)     whether there are issues which are not urgent and how those could be separated from those which are urgent.

2.3     THE POINT OF ISSUE OF THE APPLICATION

(1)     In all cases

The applicant must include in the application, or refer in the application to and file with it, the following documents or information  —

(a)     a draft final order or explanation of the order that is sought;

(b)     a clear explanation of why an order, and the specific order sought, is required;

(c)     an explanation of the nature of the dispute;

(d)     a statement of what is expected of P’s family and/or other connected individuals;

(e)     the names of the key people involved in the case, and the nature of their involvement;

(f)      a list of the options for P;

(g)     a needs assessment, including where appropriate a risk assessment;

(h)     a support plan for P, with a time line, including where appropriate a transfer plan;

(i)       evidence that the key individuals and agencies have been consulted;

(j)       confirmation that a best interests meeting has taken place, and a copy of the minutes of that meeting;

(k)     any relevant medical evidence;

(l)       except in applications under section 21A of the Act, a report from a medical practitioner or other appropriately qualified professional on P’s litigation capacity and capacity to make decisions on the issues in the case;

(m)    an explanation of how P can be supported to maximise any decision making capacity which P has (if possible);

(n)     an indication of whether there is likely to be a public law challenge in the case, and if so, the nature of the challenge which is anticipated;

(o)     a statement of how it is proposed that P will be involved in the case.

(2)     Additionally, in urgent cases

Where the application is urgent, the applicant must include in the application, or refer in the application to and file with it, the following information or documents in addition to those in paragraph 2.3(1) —

(a)     an explanation of why the case is urgent and what the consequences will be if the case is not treated as urgent;

(b)     if any of the steps in paragraph 2.2(1) have not been taken, why this is the case and what the consequences would be if those steps were taken;

(c)     confirmation of any specific deadline;

(d)     information identifying and separating the issues which are urgent from those which are not urgent.

2.4     CASE MANAGEMENT ON ISSUE

(1)     In all cases

Upon issue of the application, the papers will be placed before a judge for gate keeping and initial case management directions. These will include —

(a)     gate keeping: allocating the case to the correct level of judge, having regard to any guidance issued in relation to allocation of Court of Protection cases to Tier 3 Judges;

(b)     listing for a Case Management Conference within 28 days (unless the matter is urgent, in which case paragraph 2.4(2) applies);

(c)     directions to ensure the Case Management Conference is utilised properly;

(d)     considering whether it is necessary for P to be joined as a party, and whether any other persons should be invited to attend the Case Management Conference so that they may apply to be joined (but not making any order for any person other than P to be joined at this stage);

(e)     directing the parties to consider who can act as litigation friend or rule 1.2 representative for P if necessary;

(f)      considering what details of P’s estate should be provided for the purposes of securing litigation funding or otherwise;

(g)     considering whether an advocates’ meeting should take place before the case management conference, and ordering such a meeting if appropriate;

(h)     ordering the preparation of a core bundle (which must not exceed 150 pages, unless the court directs otherwise) for the Case Management Conference.

(2)     In urgent cases

Where the application is urgent —

(a)     if the case is within a category which must be heard by a Tier 3 Judge in accordance with any guidance issued in relation to allocation of Court of Protection cases to Tier 3 Judges, it must be transferred to a Tier 3 Judge;

(b)     the case will be listed urgently in accordance with the judge’s directions.

2.5     THE CASE MANAGEMENT CONFERENCE

At the Case Management Conference, the court will —

(a)     record the issues in dispute;

(b)     record what has been agreed between the parties;

(c)     record which issues are not to be the subject of adjudication in the case;

(d)     consider the appropriate judge for the case;

(e)     allocate a judge to the case;

(f)      actively consider and decide, having regard to rule 1.2, how P is to be involved in the case;

(g)     consider whether a litigation friend is required for P, and if so, who is to be the litigation friend, and if the Official Solicitor is to be the litigation friend, declare that the appointment of the Official Solicitor is a last resort;

(h)     determine who should be a party;

(i)       set a timetable for the proceedings;

(j)       fix a date for the Final Management Hearing, and set a target date for the Final Hearing or fix a trial window as appropriate;

(k)     consider whether a further best interests meeting is required, and if so, give directions for that meeting;

(l)       give directions for evidence, including disclosure and expert reports (if appropriate having regard to sub-paragraph (m));

(m)    actively consider whether a section 49 report or the use of a rule 1.2 representative could achieve a better result than the use of an expert;

(n)     consider whether there should be a public hearing;

(o)     give any other directions as appropriate to further the overriding objective.

2.6     THE FINAL MANAGEMENT HEARING

(1)     A Final Management Hearing will be listed to enable the court to determine whether the case can be resolved, and if not, to ensure that the trial is properly prepared, giving directions as necessary for that purpose.

(2)     A meeting should take place at least five days before the Final Management Hearing between advocates and, so far as practicable, any unrepresented parties, with the purpose of resolving or narrowing the issues to be determined at the Final Management Hearing, addressing each of the matters required by Practice Direction 4B and preparing a draft order.

(3)     The applicant (or, if the applicant is not represented but the respondent is represented, the respondent) must, not later than 3 days before the Final Management Hearing, file a core bundle, which must comply with the requirements of Practice Direction 4B and in particular include the documents specified in paragraphs 4.2 and 4.3 of that Practice Direction.

(4)     If sub-paragraph (3) has not been complied with, or any other directions have not been complied with, the court will consider whether to adjourn the hearing, and if it does so, will consider making an order as to costs.

2.7     THE FINAL HEARING

(1)     Unless otherwise directed by the court, a meeting should take place at least five days before the Final Hearing between advocates and, so far as practicable, any unrepresented parties, with the purpose of resolving or narrowing the issues to be determined at the Final Hearing.

(2)     The applicant (or, if the applicant is not represented but the respondent is represented, the respondent) must, not later than 3 days before the Final Hearing, file a bundle, which must —

(a)     comply with the requirements of Practice Direction 4B, with particular reference to paragraphs 4.6 and 4.7 of that Practice Direction; and

(b)     not generally exceed 350 pages and in any event not contain more than one copy of the same document.

(3)     If sub-paragraph (2) has not been complied with, or any other directions have not been complied with, the court will consider whether to adjourn the hearing, and if it does so, will consider making an order as to costs.

Part 3          The Property and Affairs Pathway

3.1

(1)     The Property and Affairs Pathway commences at a later stage than the Personal Welfare Pathway. It is recognised that contentious property and affairs applications tend to arise when a routine application is made, for example for the appointment of a deputy, and that application is opposed. The vast majority of applications, however, remain unopposed, and there is not the need for a pre-issue stage which there is in personal welfare cases.

(2)     The Property and Affairs Pathway comprises four stages —

(a)     When the application becomes contested (see

paragraph 3.2);.

(b)     Case management on allocation to pathway (see paragraph 3.3);

(c)     The Dispute Resolution Hearing (see paragraph 3.4);

(d)     The Final Hearing (see paragraph 3.5).

(3)     Urgent applications are less likely in property and affairs cases; but

paragraph 3.6 contains provision for their management.

3.2     WHEN THE APPLICATION BECOMES CONTESTED

(1)     When the court is notified in Form COP5 that a property and affairs application is opposed, or that the respondent wishes to seek a different order from that applied for, the case must be allocated to the Property and Affairs Pathway.

(2)     A copy of the notification in Form COP5 must be served by the court on the applicant together with the order allocating the case to the Property and Affairs Pathway (see paragraph 3.3; and see also the opening paragraph of this practice direction which disapplies rule 9.12(5) and (7)).

3.3     CASE MANAGEMENT ON ALLOCATION TO PATHWAY

(1)     Following notification in Form COP5 that the case is contested, the papers will be placed before a judge who will allocate the case to the Property and Affairs Pathway and either —

list the case for a Dispute Resolution Hearing; or

transfer the case to the most appropriate regional court outside the Central Office and Registry for listing of the Dispute Resolution Hearing and future case management.

(2)     The judge will also order the respondent to file a summary of the reasons for opposing the application or for seeking a different order, if the reasons are not clear from Form COP5 submitted by the respondent.

3.4     THE DISPUTE RESOLUTION HEARING

(1)     All parties must attend the Dispute Resolution Hearing, unless the court directs otherwise; but the Dispute Resolution Hearing is not an attended hearing for the purposes of Practice Direction 4C.

(2)     The Dispute Resolution Hearing will normally take place before a District Judge.

(3)     The purpose of the Dispute Resolution Hearing is to enable the court to determine whether the case can be resolved and avoid unnecessary litigation, and so —

(a)     in order for the Dispute Resolution Hearing to be effective, parties must approach it openly and without reserve; and

(b)     the content of the hearing is not to be disclosed and evidence of anything said or of any admission made in the course of the hearing will not be admissible in evidence, except at the trial of a person for an offence committed at the hearing.

(4)     The court will give its view on the likely outcome of the proceedings.

(5)     If the parties reach agreement to settle the case, the court will make a final order if it considers it in P’s best interests.

(6)     If the parties do not reach agreement, the court will give directions for the management of the case and for a Final Hearing, having regard to the list of matters in paragraph 2.5, and the requirements of Practice Direction 4B in relation to the preparation of a bundle.

(7)     The Final Hearing must be listed before a different judge, and the judge will mark the order accordingly.

3.5     THE FINAL HEARING

The final hearing will take place in accordance with the directions given at or following the Dispute Resolution Hearing.

3.6     URGENT APPLICATIONS

(1)     Where a property and affairs application is urgent, the applicant should bear in mind the obligation on parties to co-operate in rule 1.4(2)(c).

(2)     The applicant must include in the application, or refer in the application to and file with it, the following information or documents —

(a)     an explanation of why the case is urgent and what the consequences will be if the case is not treated as urgent;

(b)     if the application is made without notice, an explanation why it was not possible to make the application on notice, and what the consequences would be if the application were to proceed on notice and the order or an interim order were not made immediately;

(c)     confirmation of any specific deadline;

(d)     information identifying and separating the issues which are urgent from those which are not urgent.

(3)     On issue, the case will be listed urgently in accordance with the judge’s directions after considering the papers, which may, if the matter appears or is confirmed to be contentious, be that —

(a)     the case will proceed to a Dispute Resolution Hearing but listed urgently; or

(b)     the case may be listed for an interim hearing to decide the urgent matter or matters in the case, and the court can decide at that hearing whether any further hearing is necessary and if so, whether that further hearing should include a Dispute Resolution Hearing or not.

Part 4 — The Mixed Welfare and Property Pathway

4.1

(1)     Where a case contains both personal welfare and property and affairs elements, the court has the power to use whichever of the personal welfare or the property and affairs pathway it considers most suitable, or to direct the use of elements of both those pathways if it considers that appropriate.

(2)     The Mixed Welfare and Property Pathway, therefore, comprises two stages before the court makes a decision about which pathway, or a mixture of elements of both pathways, is most appropriate — The pre-issue stage , during which the prospective parties are expected to identify which pathway is most appropriate to the case and to comply with the requirements of that pathway and seek to resolve issues as far as possible;

The point of issue of the application, for which the parties must file a list of issues to allow the court to identify which pathway, or mixture of elements, is most appropriate.

(3)     Case management: On issue of the application, the papers will be placed before a judge who will either —

(a)     order the case to be allocated to a pathway and give directions accordingly; or

(b)     give directions as to the elements of each pathway which are to apply and the procedure the case will follow.’

The duty of the Court to manage cases

The COPR 2017 states,

‘1.3.

(1)     The court must further the overriding objective by actively managing cases.

(2)     The court must manage a case at all times and in particular—

(a)     when a case is referred to a judge;

(b)     at every hearing, whether listed by the court on its own initiative or on application by a party;

(c)     at all stages of a final hearing; and

(d)     when considering enforcement measures including committal.

(3)     Active case management includes—

(a)     considering the appropriate case pathway for the case;

(b)     ensuring—

(i)       that the appropriate judge is allocated to the case;

(ii)      judicial continuity, so far as practicable;

(c)     avoiding delay and keeping costs down;

(d)     encouraging the parties to co-operate with each other in the conduct of the proceedings;

(e)     identifying at an early stage—

(i)       the issues; and

(ii)      who should be a party to the proceedings;

(f)      deciding promptly—

(i)       which issues need a full investigation and hearing and which do not; and

(ii)      the procedure to be followed in the case;

(g)     deciding the order in which issues are to be resolved;

(h)     encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate;

(i)       fixing timetables or otherwise controlling the progress of the case;

(j)       considering whether the likely benefits of taking a particular step justify the cost of taking it;

(k)     dealing with as many aspects of the case as the court can on the same occasion;

(l)       dealing with the case without the parties needing to attend at court;

(m)    making use of technology;

(n)     giving directions to ensure that the case proceeds quickly and efficiently;

(o)     considering whether any hearing should be heard in public; and

(p)     considering whether any document relating to proceedings should be a public document and, if so, whether and to what extent it should be redacted.

(Rules 4.2 to 4.4 make provision about the court’s powers to authorise publication of information about proceedings and to order that a hearing be held in public.)’

The duty of the parties 

The COPR 2017 states,

‘1.4.

(1)     The parties are required to help the court to further the overriding objective.

(2)     Without prejudice to the generality of paragraph (1), each party is required to—

(a)     ask the court to take steps to manage the case if—

(i)       an order or direction of the court appears not to deal with an issue; or

(ii)      if a matter including any new circumstances, issue or dispute arises of which the court is unaware;

(b)     identify before issue if the case is within the scope of one of the case pathways and comply with the requirements of the applicable case pathway;

(c)     co-operate with the other parties and with the court in identifying and narrowing the issues that need to be determined by the court, and the timetable for that determination;

(d)     adhere to the timetable set by these Rules and by the court;

(e)     comply with all directions and orders of the court;

(f)      be full and frank in the disclosure of information and evidence to the court (including any disclosure ordered under Part 16);

(g)     co-operate with the other parties in all aspects of the conduct of the proceedings, including in the preparation of bundles.

(3)     If the court determines that any party has failed without reasonable excuse to satisfy the requirements of this rule, it may under rule 19.5 depart from the general rules about costs in so far as they apply to that party.

(Rule 16.2(2) deals with the requirements of general disclosure.)’

The duty of the legal representatives

The COPR 2017 states,

‘1.5.

(1)     Legal representatives of parties are required to help the court to further the overriding objective.

(2)     Without prejudice to the generality of paragraph (1), a legal representative of a party must—

(a)     comply with any applicable rules, practice directions or orders of the court;

(b)     follow (where appropriate) the applicable case pathway; and

(c)     address whether the case can be swiftly resolved.

Agreeing issues

‘… if you are asking the court to give you sufficient time to determine issues then you have to arrive in good time so that the court, when the hearing commences, knows exactly what the issues are between the parties and how each party suggests they should be resolved. It may even be that agreement is reached between the parties before you go in and see the judge… The judge will expect you to have all communicated with each other before you go into court in order to try and narrow down the issues that the judge has to consider that day… You are simply wasting your time and ultimately the court’s time if you are not ready when the case is called in simply because no one has spoken to each other… Whatever the issues may be between you and the other parties, be pleasant to each other. Unpleasantness rarely produces positive outcomes for anyone. If you are pleasant and speak in a calm and rational manner you are most likely to engender support from other parties and most importantly the judge. Turning up at court being belligerent by not speaking to the other parties but saying you only want to speak to the judge will not help further your case. Politeness and manners cost nothing but the benefits may be immense… Ultimately remember that the court only wants to have to make decisions about matters which cannot be resolved amicably between the parties. Essentially it is the last resort if the court has to make orders. Attending court early gives you the opportunity to speak to the other advocates and parties in the case to see whether you can resolve what may have been fundamental issues between you… One of the first things a judge will ask all parties when they attend before them will be whether any agreement has been reached on the issues which the judge is being asked to decide. If the judge is told at that stage that none of the parties has spoken to each other prior to coming to court, you must expect the judge to show a level of exasperation. Remember court time is precious… It is equally important to remember that the order the judge may make may actually not make anyone happy. If a compromise can be reached that everybody can live with, that is often so much better as a way forward… If all the issues are agreed before the hearing starts, the judge may endorse a consent order that has been drafted by the parties.’ Court of Protection Made Clear, edited by Mr Justice Keehan.

Bundles

PD 4B states,

‘Introduction

  1. This practice direction is issued to achieve consistency in the preparation of court

bundles in the Court of Protection.

Application of the practice direction

2.1.    Except as specified in paragraph 2.4, and subject to a direction under paragraph 2.5 or specific directions given in any particular case, this Practice Direction applies to all hearings in the Court of Protection —

(a)      before the President of the Family Division, the Chancellor or a puisne judge of the High Court;

(b)      relating in whole or in part to personal welfare, health or deprivation of liberty that are listed for a hearing of one hour or more before a judge other than a judge specified at sub-paragraph (a);

(c)      relating solely to property and affairs that are listed before a judge other than a judge specified at sub-paragraph (a) for —

(i)       a final hearing; or

(ii)      an interim hearing of one hour or more.

2.2.    “Hearings” includes all appearances before a judge whether with or without notice to other parties and whether for directions or for substantive relief.

2.3.    This Practice Direction applies whether a bundle is being lodged for the first time or

is being re-lodged for a further hearing.

2.4.    This practice direction does not apply to the hearing of any urgent application if and

to the extent that it is impractical to comply with it.

2.5.    The President may, after such consultation as is appropriate, direct that this practice

direction will apply to such other hearings as the President may specify irrespective of the length of hearing.

Responsibility for the preparation of the bundle

3.1.    A bundle for the use of the court at the hearing must be provided by the party in the

position of applicant at the hearing (or, if there are cross – applications, by the party whose application was first in time) or, if that person is a litigant in person, then (and subject to any direction by the court) by the first listed respondent who is not a litigant in person or P.

3.2.    Where the first named respondent is P and he or she is represented by the Official

Solicitor, the responsibility for preparing the bundle will fall to the next named respondent who is represented.

3.3.    The party preparing the bundle must paginate it. If possible the contents of the

bundle must be agreed by all parties.

Contents of the bundle

4.1.    The bundle must contain copies of all documents relevant to the hearing, in

chronological order from the front of the bundle, paginated (either in separate sections or sequentially), indexed and divided into separate sections as follows  —

(a)      preliminary documents (see paragraphs 4.2 to 4.7);

(b)      any other case management documents required by any

other practice direction;

(c)      a time estimate (see paragraph 10.1);

(d)      applications and orders including all Court of Protection forms filed with the

application;

(e)      any registered enduring or lasting power of attorney;

(f)       any urgent or standard authorisation given under Schedule A1 of the Mental Capacity Act 2005;

(g)      statements and affidavits (which must state on the top right corner of the front page the date when it was signed or sworn);

(h)      any care or support plans (where appropriate);

(i)       experts’ reports and other reports; and

(j)       other documents, divided into further sections as may be appropriate.

Preliminary Documents for Directions and Interim Hearings

4.2.    At the start of the bundle there must be inserted a document or documents prepared by each party (‘the preliminary documents for a directions or interim hearing’) which should set out (either within the preliminary documents themselves or by cross-reference to what is set out in another document that is in, or is to be put in the bundle) —

(a)      a case summary;

(b)      a chronology of relevant events;

(c)      the issues for determination at the hearing;

(d)      an outline of the likely factual and legal issues at the trial of the case;

(e)      the relief sought at the hearing; and

(f)       a list of essential reading.

4.3.    Where appropriate, the preliminary documents for a directions or interim hearing

should include —

(a)      a description of relevant family members and other persons who may be      affected by or interested in the relief sought;

(b)      a particularised account of the issues in the case;

(c)      the legal propositions relied on, and in particular whether it is asserted that any issue is not governed by the Mental Capacity Act 2005;

(d)      any directions sought concerning the identification and determination of the facts that are agreed, the facts the court will be invited to find and the factors it will be invited to take into account based on such agreed facts or findings of facts;

(e)      any directions sought concerning the alternatives the court will be invited to

consider in determining what is in P’s best interests;

(f)       any directions sought relating to expert evidence;

(g)      any other directions sought; and

(h)      a skeleton argument.

Preliminary Documents for Fact Finding Hearings

4.4.    At the start of the bundle there must be inserted a document or documents prepared by each party (“the preliminary documents for a fact finding hearing”) which should set out (either within the preliminary documents themselves, or by cross-reference to what is set out in another document that is in, or is to be put in the bundle) —

(a)      the findings of fact that the court is being asked to make; and

(b)      cross references to the evidence relied on to found those findings.

4.5.    Where appropriate, the preliminary documents for a fact finding hearing should

include —

(a)      a chronology;

(b)      a skeleton argument; and

(c)      a description of relevant family members and other persons who may be      affected by or interested in the relief sought.

Preliminary Documents for Final

Hearings

4.6.    At the start of the bundle there must be inserted a document or documents prepared by each party (“the preliminary documents for a final hearing”) which should set out (either within the preliminary documents themselves, or by cross-reference to what is set out in another document that is in, or is to be put in the bundle) —

(a)      the relief sought;

(b)      a skeleton argument.

4.7. Where appropriate, the preliminary documents for a final hearing should include —

(a)      a chronology;

(b)      the findings of fact that the court is being invited to make and the factors based on such findings or agreed facts that the court is being invited to take into account;

(c)      an appropriately particularised description of the alternatives the court is being invited to consider; and

(d)      a description of relevant family members and other persons who may be affected by or interested in the relief sought.

4.8.    Each of the preliminary documents must state on the front page immediately below

the heading the date when it was prepared and the date of the hearing for which it was prepared.

4.9.    All case summaries, chronologies and skeleton arguments contained in the

preliminary documents must be cross-referenced to the relevant pages of the bundle.

4.10.   Where the nature of the hearing is such that a complete bundle of all documents is

unnecessary, the bundle (which need not be repaginated) may comprise only those documents necessary for the hearing, but

(a)      the preliminary documents must state that the bundle is limited or incomplete; and

(b)      the bundle must if reasonably practicable be in a form agreed by all parties.

4.9.    Where the bundle is re-lodged in accordance with paragraph 9.2, before it is re-

lodged —

(a)      the bundle must be updated as appropriate; and

(b)      all superseded

documents must be removed from the bundle.

Format of the bundle

5.1.    The bundle must be contained in one or more A4 size ring binders or lever arch files

(each lever arch file being limited to 350 pages).

5.2.    All ring binders and lever arch files must have clearly marked on the front and the spine —

(a)      the title and number of the case;

(b)      the court where the case has been listed;

(c)      the hearing date and time;

(d)      if known, the name of the judge hearing the case; and

(e)      where there is more than one ring binder or lever arch file, a distinguishing letter (A, B, C etc.) or number and confirmation of the total number of binders or files (1 of 3 etc.).

Timetable for preparing and lodging the bundle

6.1.    The party preparing the bundle must, whether or not the bundle has been agreed,

provide a paginated index and, when practicable, paginated copies of updating material to all other parties not less than 5 working days before the hearing.

6.2.    Where counsel is to be instructed at any hearing, a paginated bundle must (if not already in counsel’s possession) be delivered to counsel by the person instructing that counsel not less than 4 working days before the hearing.

6.3.    The bundle (with the exception of the preliminary documents, if and insofar as they are not then available) must be lodged with the court not less than 3 working days before the hearing, or at such other time as may be specified by the judge.

6.4.    The preliminary documents (and where appropriate any documents referred to therein that are not in the bundle) must be lodged with the court no later than 11 am on the day before the hearing and, where the hearing is before a Tier 3 Judge and the name of the judge is known, must at the same time be sent by email to the judge’s clerk.

Lodging the bundle

7.1.    The bundle must be lodged at the appropriate office as detailed at paragraph

7.2. If the bundle is lodged in the wrong place the judge may —

(a)      treat the bundle as having not been lodged; and

(b)      take the steps referred to in paragraph 12.

7.2.    Unless the judge has given some other direction as to where the bundle in any particular case is to be lodged (for example a direction that the bundle is to be lodged with the judge’s clerk) the bundle must be lodged —

(a)      for hearings before a judge of the Family Division, in the office of the Clerk of the Rules, 1st Mezzanine, Queen’s Building, Royal Courts of Justice, Strand, London WC2A 2LL (DX 44450 Strand);

(b)      for hearings before a judge of the Chancery Division, in the office of the Chancery Judges’ Listing Officer, 7 Rolls Building, Fetter Lane, London EC4 1NL (DX 160040 Strand 7);

(c)      for hearings at the central registry of the Court of Protection in the office of the Listing & Appeals team, Court of Protection, PO Box 70185, First Avenue House, 42 – 49 High Holborn, London WC1A 9JA (DX 160013 Kingsway 7);

(d)      for hearings in the Central Family Court at First Avenue House, at the List Office counter, 3rd floor, First Avenue House, 42 – 49 High Holborn, London, WC1V 6NP (DX 160010 Kingsway 7); and

(e)      for hearings at any other court, including regional courts where a Court of Protection judge is sitting, at such place as may be designated and in default of any such designation, at the court office or Court of Protection section of the court where the hearing is to take place.

7.3.    Any bundle sent to the court by post, DX or courier must be clearly addressed to the appropriate office and must show the date and place of the hearing on the outside of any packaging as well as on the bundle itself. It must in particular expressly and prominently state that it relates to Court of Protection business.

Lodging the bundle – additional requirements for cases being heard at the Central Family Court or before a Tier 3 Judge at the RCJ

8.1.    In the case of hearings at the Central Family Court or before a Tier 3 Judge at the RCJ, parties must —

(a)      if the bundle or preliminary and other documents are delivered personally, ensure that they obtain a receipt from the clerk accepting it or them; and

(b)      if the bundle or preliminary and other documents are sent by post or DX, ensure that they obtain proof of posting or despatch.

8.2.    The receipt (or proof of posting or despatch, as the case may be) must be brought to court on the day of the hearing and must be produced to the court if requested. If the receipt (or proof of posting or despatch) cannot be produced to the court the judge may —

(a)      treat the bundle as having not been lodged; and

(b)      take the steps referred to in paragraph 12.

8.3.    For hearings at the RCJ before a Tier 3 Judge —

(a)      bundles or preliminary and other documents delivered after 11 am on the day before the hearing will not be accepted by the Clerk of the Rules or Chancery Judges’ Listing Officer and must be delivered directly to the clerk of the judge hearing the case;

(b)      upon learning before which judge a hearing is to take place, the clerk to counsel, or other advocate, representing the party responsible for the bundle must, no later than 3 pm the day before the hearing, telephone the clerk of the judge hearing the case to ascertain whether the judge has received the bundle (including the preliminary and other documents), and, if not, must organise prompt delivery.

Removing and re-lodging the bundle

9.1.    Following completion of the hearing the party responsible for the bundle must retrieve it from the court immediately or, if that is not practicable, must collect it from the court within five working days. Bundles which are not collected within the stipulated time may be destroyed.

9.2.    The bundle must be re-lodged for the next (and for any further hearings of whatever type) in accordance with the provisions of this Practice Direction and in a form, which complies with paragraphs 5.1 and 5.2.

Time estimates

10.1.   In every case a time estimate for the hearing must be prepared which must so far as practicable be agreed by all parties and must —

(a)      specify separately —

(i)       the time estimated to be required for judicial pre-reading;

(ii)      the time required for hearing all evidence and submissions; and

(iii)      the time estimated to be required for preparing and delivering judgment; and

(b)      be prepared on the basis that before they give evidence all witnesses will have read all relevant filed statements and reports.

10.2.   Once a case has been listed, any change in time estimates must be notified immediately by telephone (and then immediately confirmed in writing) —

(a)      in the case of hearings in the RCJ, to the Clerk of the Rules or the Chancery Judges’ Listing Officer as appropriate;

(b)      in the case of hearings in the central Registry of the Court of Protection, to the Diary Manager in the Listing & Appeals team at the Court of Protection;

(c)      in the case of hearings in the Central Family Court at First Avenue House, to the List Officer at First Avenue House; and

(d)      in the case of hearings elsewhere, to the relevant listing officer.

Taking cases out of the list

  1. As soon as it becomes known that a hearing will no longer be effective, whether as a result of the parties reaching agreement or for any other reason, the parties or their representatives must immediately notify the court by telephone and by letter. The letter, which must wherever possible be a joint letter sent on behalf of all parties with their signatures applied or appended, must include —

(a) a short background summary of the case;

(b) the written consent of each party who consents and, where a party does not consent, details of the steps which have been taken to obtain that party’s consent and, where known, an explanation of why that consent has not been given;

(c)      a draft of the order being sought; and

(d)      enough information to enable the court to decide —

(i)       whether to take the case out of the list; and

(ii)      whether to make the proposed order.

Penalties for failure to comply with this practice direction

  1. Failure to comply with any part of this practice direction may result in the judgeremoving the case from the list or putting the case further back in the list and may also result in a “wasted costs” order in accordance with CPR rule 46.8 or someother adverse costs order.’

Advocacy

Most hearings take place in court, but they can take place in a hospital, nursing home or other agreed venue where this is necessary in order to enable the relevant person to participate. The approach may be adversarial, inquisitorial or conciliatory according to the needs of the case.

The COP usually operates an inquisitorial method as opposed to an adversarial method. The aim of this approach is to get at the truth through extensive investigation and examination of all of the evidence. Whereas the adversarial method aims to get at the truth by two competing parties arguing their case and the judge deciding whose case is the strongest. Nevertheless any fact in dispute needs to be proved by evidence. The burden is on the party asserting that a fact is true to prove that it is true (i.e. it is the person who stated a particular fact to prove that it is true, not the respondent to prove that it is not true) and the standard of proof is that on the balance of probabilities.

‘2019. PD 3B – Case Pathways states,

Part 2 — The Personal Welfare Pathway

2.1     The Personal Welfare Pathway comprises six stages —

(a)     The pre-issue stage (see paragraph 2.2);

(b)     The point of issue of the application (see paragraph 2.3);

(c)     Case management on issue (see paragraph 2.4);

(d)     The Case Management Conference (see paragraph 2.5);

(e)     The Final Management Hearing (see paragraph 2.6);

(f)      The Final Hearing (see paragraph 2.7).

2.2     THE PRE-ISSUE STAGE

(1)     In all cases

The applicant must take all necessary steps to  —

(a)     identify all potential respondents to the proceedings which the applicant proposes to start, and any other interested parties;

(b)     notify P (where possible) and the potential respondents and other interested parties identified in accordance with sub-paragraph (a) of the applicant’s intention to start the proceedings unless the matters which the court would be asked to determine can be resolved without the need for proceedings;

(c)     explain to those notified in accordance with sub-paragraph (b) the nature of the proceedings which the applicant proposes to start, and the matters which the court would be

asked to determine in those proceedings;

(d)     set out the applicant’s proposals for resolving those matters without the need for proceedings;

(e)     engage with those notified in accordance with sub-paragraph (b) to resolve those matters as far as possible;

(f)      ensure, where it is not possible to resolve those matters without starting proceedings, that all the documents and information required by paragraph

2.3     will be ready to be included with the application.

(2)     Additionally, in urgent cases

Where the applicant intends to make an urgent or interim application, the applicant must consider —

(a)     why the case is urgent and what the consequences will be if the case is not treated as urgent;

(b)     if any of the steps in paragraph 2.2(1) cannot be taken, why this is the case and what the consequences would be if those steps were taken;

(c)     whether there is any specific deadline, and what that deadline is;

(d)     whether there are issues which are not urgent and how those could be separated from those which are urgent.

2.3     THE POINT OF ISSUE OF THE APPLICATION

(1)     In all cases

The applicant must include in the application, or refer in the application to and file with it, the following documents or information —

(a)     a draft final order or explanation of the order that is sought;

(b)     a clear explanation of why an order, and the specific order sought, is required;

(c)     an explanation of the nature of the dispute;

(d)     a statement of what is expected of P’s family and/or other connected individuals;

(e)     the names of the key people involved in the case, and the nature of their involvement;

(f)      a list of the options for P;

(g)     a needs assessment, including where appropriate a risk assessment;

(h)     a support plan for P, with a time line, including where appropriate a transfer plan;

(i)       evidence that the key individuals and agencies have been consulted;

(j)       confirmation that a best interests meeting has taken place, and a copy of the minutes of that meeting;

(k)     any relevant medical evidence;

(l)       except in applications under section 21A of the Act, a report from a medical practitioner or other appropriately qualified

professional on P’s litigation capacity and capacity to make

decisions on the issues in the case;

(m)    an explanation of how P can be supported to maximise any decision-making capacity which P has (if possible);

(n)     an indication of whether there is likely to be a public law challenge in the case, and if so, the nature of the challenge which is anticipated;

(o)     a statement of how it is proposed that P will be involved in the case.

(2)     Additionally, in urgent cases Where the application is urgent, the applicant must include in the application, or refer in the application to and file with it, the following information or documents in addition to those in paragraph 2.3(1) —

(a)     an explanation of why the case is urgent and what the consequences will be if the case is not treated as urgent;

(b)     if any of the steps in paragraph 2.2(1) have not been taken, why this is the case and what the consequences would be if those steps were taken;

(c)     confirmation of any specific deadline;

(d)     information identifying and separating the issues which are urgent from those which are not urgent.

2.4     CASE MANAGEMENT ON ISSUE

(1)     In all cases

Upon issue of the application, the papers will be placed before a judge for gatekeeping and initial case management directions. These will include —

(a)     gatekeeping: allocating the case to the correct level of judge, having regard to any guidance issued in relation to allocation of Court of Protection cases to Tier 3 Judges;

(b)     listing for a Case Management Conference within 28 days (unless the matter is urgent, in which case paragraph 2.4(2) applies);

(c)     directions to ensure the Case Management Conference is utilised properly;

(d)     considering whether it is necessary for P to be joined as a party, and whether any other persons should be invited to attend the Case Management Conference so that they may

apply to be joined (but not making any order for any person other than P to be joined at this stage);

(e)     directing the parties to consider who can act as litigation friend or rule 1.2 representative for P if necessary;

(f)      considering what details of P’s estate should be provided for the purposes of securing litigation funding or otherwise;

(g)     considering whether an advocates’ meeting should take place before the case management conference, and ordering such a meeting if appropriate;

(h)     ordering the preparation of a core bundle (which must not exceed 150 pages, unless the court directs otherwise) for the Case Management Conference.

(2)     In urgent cases

Where the application is urgent —

(a)     if the case is within a category which must be heard by a Tier 3 Judge in accordance with any guidance issued in relation to allocation of C ourt of Protection cases to Tier 3 Judges, it must be transferred to a Tier 3 Judge;

(b)     the case will be listed urgently in accordance with the judge’s directions.

2.5     THE CASE MANAGEMENT CONFERENCE

At the Case Management Conference, the court will —

(a)     record the issues in dispute;

(b)     record what has been agreed between the parties;

(c)     record which issues are not to be the subject of adjudication in the case;

(d)     consider the appropriate judge for the case;

(e)     allocate a judge to the case;

(f)      actively consider and decide, having regard to rule 1.2, how P is to be involved in the case;

(g)     consider whether a litigation friend is required for P, and if so, who is to be the litigation friend, and if the Official Solicitor is to be the litigation friend, declare that the appointment of the Official Solicitor is a last resort;

(h)     determine who should be a party;

(i)       set a timetable for the proceedings;

(j)       fix a date for the Final Management Hearing, and set a target date for the Final Hearing or fix a trial window as appropriate;

(k)     consider whether a further best interests meeting is required, and if so, give directions for that meeting;

(l)       give directions for evidence, including disclosure and expert reports (if appropriate having regard to sub-paragraph (m));

(m)    actively consider whether a section 49 report or the use of a rule 1.2       representative could achieve a better result than the use of an expert;

(n)     consider whether there should be a public hearing;

(o)     give any other directions as appropriate to further the overriding objective.

2.6     THE FINAL MANAGEMENT HEARING

(1)     A Final Management Hearing will be listed to enable the court to determine whether the case can be resolved, and if not, to ensure that the trial is properly prepared, giving directions as necessary for that purpose.

(2)     A meeting should take place at least five days before the Final Management Hearing between advocates and, so far as practicable, any unrepresented parties, with the purpose

of resolving or narrowing the issues to be determined at the Final Management Hearing, addressing each of the matters required by Practice Direction 4B and preparing a draft order.

(3)     The applicant (or, if the applicant is not represented but the respondent is represented, the respondent) must, not later than 3 days before the Final Management Hearing, file a core

bundle, which must comply with the requirements of Practice Direction 4B and in particular include the documents specified in paragraphs 4.2 and 4.3 of that Practice Direction.

(4)     If sub-paragraph (3) has not been complied with, or any other directions have not been complied with, the court will consider whether to adjourn the hearing, and if it does so, will consider making an order as to costs.

2.7     THE FINAL HEARING

(1)     Unless otherwise directed by the court, a meeting should take place at least five days before the Final Hearing between advocates and, so far as practicable, any unrepresented

parties, with the purpose of resolving or narrowing the issues to be determined at the Final Hearing.

(2)     The applicant (or, if the applicant is not represented but the respondent is represented, the respondent) must, not later than 3 days before the Final Hearing, file a bundle, which must —

(a)     comply with the requirements of Practice Direction 4B, with particular reference to paragraphs 4.6 and 4.7 of that Practice Direction; and

(b)     not generally exceed 350 pages and in any event not contain more than one copy of the same document.

(3)     If sub-paragraph (2) has not been complied with, or any other directions have not been complied with, the court will consider whether to adjourn the hearing, and if it does so, will consider making an order as to costs.

Part 3 — The Property and Affairs Pathway

3.1

(1)     The Property and Affairs Pathway commences at a later stage than the Personal Welfare Pathway. It is recognised that contentious property and affairs applications tend to arise when a routine application is made, for example for the appointment of a deputy, and that application is opposed. The vast majority of applications, however, remain unopposed, and there is not the need for a pre-issue stage which there is in personal welfare cases.

(2)     The Property and Affairs Pathway comprises four stages —

(a)      When the application becomes contested (see paragraph 3.2);

(b)     Case management on allocation to pathway (see paragraph 3.3);

(c)      The Dispute Resolution Hearing (see paragraph 3.4);

(d)     The Final Hearing (see paragraph 3.5).

(3)     Urgent applications are less likely in property and affairs cases; but

paragraph 3.6 contains provision for their management.

3.2     WHEN THE APPLICATION BECOMES CONTESTED

(1)     When the court is notified in Form COP5 that a property and affairs application is opposed, or that the respondent wishes to seek a different order from that applied for, the case must be allocated to the Property and Affairs Pathway.

(2)     A copy of the notification in Form COP5 must be served by the court on the applicant together with the order allocating the case to the Property and Affairs Pathway (see paragraph 3.3; and see also the opening paragraph of this practice direction which disapplies rule 9.12(5) and (7)).

3.3     CASE MANAGEMENT ON ALLOCATION TO PATHWAY

(1)     Following notification in Form COP5 that the case is contested, the papers will be placed before a judge who will allocate the case to the Property and Affairs Pathway and either — list the case for a Dispute Resolution Hearing; or transfer the case to the most appropriate regional court outside the Central Office and Registry for listing of the Dispute Resolution Hearing and future case management.

(2)     The judge will also order the respondent to file a summary of the reasons for opposing the application or for seeking a different order, if the reasons are not clear from Form COP5 submitted by the respondent.

3.4     THE DISPUTE RESOLUTION HEARING

(1)     All parties must attend the Dispute Resolution Hearing, unless the court directs otherwise; but the Dispute Resolution Hearing is not an attended hearing for the purposes of Practice Direction 4C.

(2)     The Dispute Resolution Hearing will normally take place before a District Judge.

(3)     The purpose of the Dispute Resolution Hearing is to enable the court to determine whether the case can be resolved and avoid unnecessary litigation, and so —

(a)      in order for the Dispute Resolution Hearing to be effective, parties must approach it openly and without reserve; and

(b)     the content of the hearing is not to be disclosed and evidence of anything said or of any admission made in the course of the hearing will not be admissible in evidence, except at the trial of a person for an offence committed at the hearing.

(4)     The court will give its view on the likely outcome of the proceedings.

(5)     If the parties reach agreement to settle the case, the court will make a final order if it considers it in P’s best interests.

(6)     If the parties do not reach agreement, the court will give directions for the management of the case and for a Final Hearing, having regard to the list of matters in paragraph 2.5, and the requirements of Practice Direction 4B in relation to the preparation of a bundle.

(7)     The Final Hearing must be listed before a different judge, and the judge will mark the order accordingly.

3.5     THE FINAL HEARING

The final hearing will take place in accordance with the directions given at or following the Dispute Resolution Hearing.

3.6     URGENT APPLICATIONS

(1)     Where a property and affairs application is urgent, the applicant should bear in mind the obligation on parties to co-operate in rule 1.4(2)(c).

(2)     The applicant must include in the application, or refer in the application to and file with it, the following information or documents —

(a)      an explanation of why the case is urgent and what the consequences will be if the case is not treated as urgent;

(b)     if the application is made without notice, an explanation why it was not possible to make the application on notice, and what the consequences would be if the application were to proceed on notice and the order or an interim order were not made immediately;

(c)      confirmation of any specific deadline;

(d)     information identifying and separating the issues which are urgent from those which are not urgent.

(3)     On issue, the case will be listed urgently in accordance with the judge’s directions after considering the papers, which may, if the matter appears or is confirmed to be contentious, be that —

(a)      the case will proceed to a Dispute Resolution Hearing but listed urgently; or

(b)     the case may be listed for an interim hearing to decide the urgent matter or matters in the case, and the court can decide at that hearing whether any further hearing is necessary and if so, whether that further hearing should include a Dispute Resolution Hearing or not.

Part 4 — The Mixed Welfare and Property Pathway

4.1

(1)     Where a case contains both personal welfare and property and affairs elements, the court has the power to use whichever of the personal welfare or the property and affairs pathway it considers most suitable, or to direct the use of elements of both those pathways if it considers that appropriate.

(2)     The Mixed Welfare and Property Pathway, therefore, comprises two stages before the court makes a decision about which pathway, or a mixture of elements of both pathways, is most appropriate — The pre-

issue stage , during which the prospective parties are expected to identify which pathway is most appropriate to the case and to comply with the requirements of that pathway and seek to resolve issues as far as possible; The point of issue of the application , for which the parties must file a list of issues to allow the court to identify which pathway, or mixture of elements, is most appropriate.

(3)     Case management: On issue of the application, the papers will be placed before a judge who will either —

(a)      order the case to be allocated to a pathway and give directions accordingly; or

(b)     give directions as to the elements of each pathway which are to apply and the procedure the case will follow.’

ADR

‘The parties will be encouraged to use an alternative dispute resolution procedure when appropriate.’ Court of Protection Practice 2017, paragraph 8.37.

In property and affairs cases there is a form of judge led mediation – Dispute Resolution Hearings.

For procedural guidance on Dispute Resolution Hearings see paragraph 3.4 of PD 3B.

‘Advisers are expected to discuss the possibility of mediation or other forms of alternative dispute resolution (ADR) before litigating and to keep this decision under review’ Court of Protection Handbook, paragraph 19.1.

CPR, r.1 states, ‘The parties are required to help the court to further the overriding objective’). Blackstone’s, paragraph 73.20 further states, ‘CPR, r.1.3, which requires the parties to help the court to further the overriding objective, places the parties under a duty in relation to ADR. Practically, this will require the parties… to consider seriously the possibility of using it to resolve their dispute.’

The court will not make an order directing the parties to undertake a particular form of ADR. However, if a party has acted unreasonably in refusing to enter into ADR to resolve their dispute, the court may mark its disapproval by making an adverse costs order (see Blackstone’s, paragraph 73.23). CPR, r.44.4(3)(a)  (Factors to be taken into account in deciding the amount of costs) states that the court will have regard to, ‘efforts made before & during the proceedings to try to resolve the dispute’. Blackstone’s, paragraph 68.21 further states, ‘One of the circumstances in which the court may order one party to pay another party’s costs on the indemnity basis is where the court wishes to penalise the paying party for its misconduct in relation to the proceedings… The Court of Appeal has declined to set out principles on which the discretion to award indemnity-basis costs is to be exercised, beyond stating that an indemnity costs order will be appropriate where the facts of the case or the conduct of the parties removes it from the norm [including]: (b) where a party… has acted in such a way as deserves condemnation.’ In my submission under CPR, r.3.1(3) the court’s armoury includes the making of an ‘unless order’.

Adverse costs orders have long been used as a means of compelling suitable litigation behaviour. In Halsey v Milton Keynes NHS Trust and Steel [2004], Lord Justice Dyson made it clear that the court can impose a costs sanction on a party who unreasonably refuses to mediate.

More recently in PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288, Lord Justice Briggs said:

‘The ADR Handbook, first published in 2013, after the period relevant to these proceedings, sets out at length at paragraph 11.56 the steps which a party faced with a request to engage in ADR, but which believes that it has reasonable grounds for refusing to participate at that stage, should consider in order to avoid a costs sanction. The advice includes:

  1. a) Not ignoring an offer to engage in ADR;
  2. b) Responding promptly in writing, giving clear and full reasons why ADR is not appropriate at the stage, based if possible on the Halsey guidelines;
  3. c) Raising with the opposing party any shortage of information or evidence believed to be an obstacle to successful ADR, together with consideration of how that shortage might be overcome;
  4. d) Not closing off ADR of any kind, and for all time, in case some other method than that proposed, or ADR at some later date, might prove to be worth pursuing.

That advice may fairly be summarised as calling for constructive engagement in ADR rather than flat rejection, or silence. It is apparent from the footnotes that the authors drew heavily on the first instance decision in the present case, to which I now turn.

Finally, as is recognised by the weight placed on the judge’s decision in the passage in the ADR Handbook to which I have referred, this case sends out an important message to civil litigants, requiring them to engage with a serious invitation to participate in ADR, even if they have reasons which might justify a refusal, or the undertaking of some other form of ADR, or ADR at some other time in the litigation. To allow the present appeal would, as it seems to me, blunt that message. The court’s task in encouraging the more proportionate conduct of civil litigation is so important in current economic circumstances that it is appropriate to emphasise that message by a sanction which, even if a little more vigorous than I would have preferred, nonetheless operates pour encourager les autres.’

The principles in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, have also been directly expressed in procedural rules and extended further. For example, the PD – Pre-Action Conduct, allows the court to penalise a party who has not followed the requirements of the PD by forcing the payment of costs on an indemnity basis (PD – Pre-Action Conduct paragraph 16(b)).

In Garritt and Others v Ronnan and Solarpower PV Limited [2014] EWHC 1774 (Ch), His Honour Judge Waksman QC said, ‘To consider that mediation is not worth it because the sides are opposed on a binary issue, I’m afraid seems to me to be misconceived… The point is that you compare the costs of a mediation with the costs of a trial. And the costs of a mediation, on any view, would have been far less than the costs of the trial.’

Deprivation of liberty applications

PD 11A states,

PART 1     APPLICATIONS UNDER SECTION 21A RELATING TO A STANDARD OR URGENT AUTHORISATION UNDER SCHEDULE A1

  1. This Part sets out the procedure to be followed in applications to the court for orders under section 21A of the Mental Capacity Act 2005 relating to a standard or urgent authorisation under Schedule A1 of that Act to deprive a person of his or her liberty. By their nature, such applications are of special urgency and therefore will be dealt with by the court according to the special procedure described here. Other applications may, while not being DoL applications within the meaning of the term explained above, raise issues relating to deprivation of liberty and require similarly urgent attention; and while the special DoL procedure will not apply to such applications, they should be raised with the DoL team at the earliest possible stage so that they can be handled appropriately. The key features of the special DoL procedure are —

(a)     special DoL court forms ensure that DoL court papers stand out as such and receive special handling by the court office;

(b)     the application is placed before a judge of the court as soon as possible  –  if necessary, before issue of the application for judicial directions to be given as to the steps to be taken in the application, and who is to take each step and by when;

(c)     the usual Court of Protection Rules (for example, as to method and timing of service of the application) will apply only so far as consistent with the judicial directions given for the particular case;

(d)     a dedicated team in the court office (‘the DoL team’) will deal with DoL applications at all stages, including liaison with would – be applicants/other parties;

(e)     the progress of each DoL case will be monitored by a judge assigned to that case, assisted by the DoL team.

Urgent applications

  1. In extremely urgent cases, the DoL team can arrange for a telephone application to be made to the judge for directions and/or an interim order even before the application has been issued. In such cases the applicant must contact the DoL team and provide the following information —

(a)     the parties’ details;

(b)     where the parties live;

(c)     the issue to be decided;

(d)     the date of urgent or standard authorisation;

(e)     the date of effective detention;

(f)      the parties’ legal representatives;

(g)     any family members or others who are involved;

(h)     whether there have been any other court proceedings involving the parties and if so, where.

  1. Contact details for the DoLS team may be found on www.gov.uk as part of the information for the Court of Protection and for Deprivation of Liberty.
  2. The public counter is open between 9.30 am to 4.30 am on working days. The DoL team can receive telephone calls and faxes between 9.00 am and 5.00 pm. Faxes transmitted after 4.30 pm will be dealt with the next working day.
  3. When in an emergency it is necessary to make a telephone application to a judge outside normal court hours, the security office at the Royal Courts of Justice should be contacted on 020 7947 6260. The security officer should be informed of the nature of the case.

In the Family Division, the out-of-hours application procedure involves      the judge being contacted through a Family Division duty officer, and the RCJ security officer will need to contact the duty officer and not the judge’s clerk or the judge.

  1. Intending applicants/other parties may find it helpful to refer to —

(a)     the Code of Practice Deprivation of Liberty Safeguards (June 2008), ISBN 978 – 0113228157, supplementing the main Mental Capacity Act 2005 Code of Practice: in particular Chapter 10, What is the Court of Protection and who can apply to it?; and

(b)     the judgment of Mr Justice Munby in Salford City Council v GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam); [2008] 2 FLR 1295. Although this case was decided before the coming into force of the DoL amendments to the Mental Capacity Act 2005, it sets out helpful guidance on the appropriate court procedures for cases relating to the deprivation of liberty of adults.

  1. The DoL team will be pleased to explain the court’s procedures for handling DoL cases. Please note that the team (as with all court staff) is not permitted to give advice on matters of law. Please do not contact the DoL team unless your inquiry concerns a deprivation of libertyquestion (whether relating to a potential application, or a case which is already lodged with the Court).

DoL court forms

  1. The special DoL court forms are as follows —

(a)     DLA: Deprivation of Liberty Application Form: to be used for all DoL applications;

(b)     DLB: Deprivation of Liberty Request for Urgent Consideration: this short form allows applicants to set out the reasons why the case is urgent, the timetable they wish the case to follow, and any interim relief sought. A draft of any order sought should be attached. Ideally, the DLB (plus any draft order) should be placed at the top of the draft application and both issued and served together;

(c)     DLD: Deprivation of Liberty Certificate of Service/non-service and Certificate of notification/non-notification;

(d)     DLE: Deprivation of Liberty Acknowledgement of service/notification.

These forms can be obtained from the Court of Protection office or downloaded from the court’s website: http://hmctsformfinder.justice.gov.uk/HMCTS/GetForms.do?court_forms_category=court%20of%20protection

  1. To ensure that papers relating to DoL applications are promptly directed to the DoL team at the court, it is essential that the appropriate DoL court forms are used.
  2. The DoL court forms should be used for, and only for, DoL applications. If in such a case it is anticipated that other issues may arise, the DoL forms should identify and describe briefly those issues and any relief which may be sought in respect of them: sections 3.5 and 5 of form DLA, the Deprivation of Liberty Application Form, offer an opportunity to do this. ‘Other issues’ are perhaps most likely to arise in the event that the court decides the DoL application in the applicant’s favour. In such acase, if the applicant has already identified the ‘other issues’ in his or her form DLA, the court will be able to address these, either by dealingwith them immediately or by giving directions for their future handling.
  1. Accordingly, unless the court expressly directs, applicants should not issue a second and separate application (using the standard court forms) relating to any ‘other issues’.
  2. Where an application seeks relief concerning a deprivation of P’s liberty other than under section 21A in respect of a standard or urgent authorisation (for example, where the application is for an order under section 16(2)(a)), the dedicated DoL court forms should not be used.  Rather the standard court forms should be used for such an application, but it should be made clear on them that relief relating to a deprivation of P’s liberty is being sought, and the proposed applicant should contact the DoL team to discuss handling at the earliest possible stage before issuing the application.

How to issue a DoL application.

  1. To issue a DoL application, the following forms should be filed at court —

(a)     form DLA;

(b)     form DLB (plus draft order);

(c)     the appropriate court fee.

Where a draft order is lodged with the court, it would be helpful – although not compulsory – if an electronic version of the order could also be lodged on a device, if possible.

  1. In cases of extreme emergency or where it is not possible to attend at the court office, for example during weekends, the court will expect an applicant to undertake to file form DLA and to pay the court fee unless an exemption applies.

Inviting the court to make judicial directions for the handling of the application

  1. The following is a sample list of possible issues which the court is likely to wish to consider in judicial directions in a DoL case. It is intended as a prompt, not as a definitive list of the issues that may need to be covered —

(a)     upon whom, by when and how service of the application should be effected;

(b)     dispensing with acknowledgement of service of the application or allowing a short period of time for so doing, which in some cases may amount to a few hours only;

(c)     whether further lay or expert evidence should be obtained;

(d)     whether P/the detained person should be a party and represented by the Official Solicitor and whether any other person should be a party;

(e)     whether any family members should be formally notified of the application and of any hearing and joined as parties;

(f)      fixing a date for a First Hearing and giving a time estimate;

(g)     fixing a trial window for any final hearing and giving a time estimate;

(h)     the level of judge appropriate to hear the case;

(i)       whether the case is such that it should be immediately transferred to the High Court for a Tier 3 Judge to give directions;

(j)       provision for a bundle for the judge at the First Hearing.

  1. If you are an applicant without legal representation, and you are not sure exactly what directions you should ask for, you may prefer simply to invite the judge to make appropriate directions in light of the nature and urgency of the case as you have explained it on the DLB form. In exceptionally urgent cases, there may not be time to formulate draft directions: the court will understand if applicants in such cases (whether or no t legally represented) simply ask the judge for appropriate directions.

After issue of the application

  1. The DoL team will immediately take steps to ensure that the application is placed before a judge nominated to hear Court of Protection cases and DoL applications.
  2. As soon as the court office is put on notice of a DoL application, the DoL team will notify a judge to put the judge on stand-by to deal with the application. The judge will consider the application on the papers and make a first order.

Steps after the judge’s first order

  1. The DoL team will —

(a)     action every point in the judge’s note or instruction;

(b)     refer any query that arises to the judge immediately or, if not available, to another judge;

(c)     make all arrangements for any transfer of the case to another court and/or for a hearing.

  1. The applicant or his/her legal representative should follow all steps in the judge’s order and —

(a)     form DLD should be filed with the court if appropriate; and

(b)     form DLE should be included in any documents served unless ordered otherwise.

The First Hearing

  1. The First Hearing will be listed for the court to fix a date for any subsequent hearing(s), give directions and/or to make an interim or final order if appropriate. The court will make such orders and give such directions as are appropriate in the case.
  2. The court will aim to have the First Hearing before a judge of every DoL application within 5 working days of the date of issue of the application.
  3. Applicants can indicate on the DLB form if they think that the application needs to be considered within a shorter timetable, and set out roposals for such a timetable. On the first paper consideration the court will         consider when the First Hearing should be listed.
  4. If time allows and no specific direction has been made by the court, an indexed and paginated bundle should be prepared for the judge and any skeleton arguments and draft orders given to the court as soon as they are available. A copy of the index should be provided to all parties and, where another party appears in person, a copy of the bundle should be provided.

PART 2      APPLICATIONS UNDER SECTION 16(2)(A) FOR AN ORDER AUTHORISING DEPRIVATION OF LIBERTY UNDER SECTION 4A(3) AND (4) PURSUANT TO A STREAMLINED PROCEDURE

  1. This Part sets out the procedure to be followed in applications to the court under section 16(2)(a) to authorise deprivation of liberty under section 4A(3) of the Act pursuant to a streamlined procedure and applies only to such applications. Reference should be made generally to the decision of the Supreme Court in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another; P and Q (by their litigation friend the Official Solicitor) v Surrey County Council[2014] UKSC 19, and in relation to the procedure in thesecases, to the judgments of the President of the Court ofProtection in Re X and Others (Deprivation of Liberty) [2014] EWCOP 25 and in Re X and Others (Deprivation of Liberty) (Number 2) [2014] EWCO P 37.

Making the application

  1. To bring proceedings, the applicant must file an application using Form COPDOL 11, verified by a statement of truth and accompanied by all attachments and evidence required by that form and its annexes.
  2. The application form and accompanying annexes and attachments are specifically designed to ensure that the applicant provides the court with essential information and evidence as to the proposed measures, on the basis of which the court may adjudicate as to the appropriateness of authorising a deprivation of liberty, and in particular to identify whether a case is suitable for consideration without an oral hearing. The use of the form and its annexes is mandatory and they must be provided fully completed and verified by the required statements of truth.
  1. The applicant must ensure that the evidence in the application form, accompanying annexes and attachments is succinct and focussed.
  2. A separate application must be made for every individual for whom the applicant requests an authorisation of deprivation of liberty. However, where there are matters in relation to which the facts are identical for a number of individuals, such as common care arrangements, the applicant may, in addition to addressing the specific issues relating to each individual, attach a generic statement dealing with the common care arrangements or other matters common to those individuals.

Deponent

  1. The applicant must consider carefully who should complete the form and each annex with regard to the nature of the evidence required by each. There is no requirement that the same individual should complete and verify by statement of truth the form and each annex and indeed it might be inappropriate for this to be the case, where different people are best placed to provide evidence on different matters.

Applicant’s duty of full and frank disclosure

  1. The applicant has a duty of full and frank disclosure to the court of all facts and matters that may have an impact on the court’s decision whether to authorise the deprivation of liberty. The applicant should therefore scrutinise the circumstances of the case and clearly identify in the evidence in support (in Annex A to Form COPDOL 11) factors —

(a)     needing particular judicial scrutiny;

(b)     suggesting that the arrangements in relation to which authorisation is sought may not in fact be in the best interests of the person the application is about, or the least restrictive option; or

(c)     otherwise tending to indicate that the order should not be made.

Pursuant to this duty, the applicant should also identify those persons, not consulted by the applicant, who are in the same category under paragraph 39 as persons with whom the applicant has consulted. Those persons must be listed in Annex B to Form COPDO L 11 together with an explanation in that Annex of why they have not been consulted.

Draft order

  1. The application must be accompanied by a draft of the order which the applicant seeks, including the duration of the authorisation sought, appropriate directions for review, and liberty to apply for its reconsideration.

Consultation with the person the application is about

  1. Consultation with the person the application is about must take place before the application form is lodged with the court. The applicant must arrange for that person to be informed of the following matters —

(a)     that the applicant is making an application to court;

(b)     that the application is to consider whether the person lacks capacity to make decisions in relation to his or her residence and care, and whether to authorise a deprivation of their liberty in connection with the arrangements set out in the care plan;

(c)     what the proposed arrangements under the order sought are;

(d)     that the person is entitled to express his or her views, wishes and feelings in relation to the proposed arrangements and the application, and that the person undertaking the consultation will ensure that these are communicated to the court;

(e)     that the person is entitled to seek to take part in the proceedings by being joined as a party or otherwise, what that means, and that the person undertaking the consultation will ensure that any such request is communicated to the court;

(f)      that the person undertaking the consultation can help him or her to obtain advice and assistance if he or she does not agree with the proposed arrangements in the application.

  1. The person undertaking the consultation must complete Annex C to Form COPDOL 11.
  2. The applicant must confirm that the person the application is about has been supported and assisted to express his or her views, wishes and feelings in relation to the application and the arrangements proposed in it, and encouraged to take part in the proceedings to the extent that he or she wishes, in accordance with section 4(4) of the Act.

Consultation with other persons regarding the making of the application

  1. The consultation required by paragraph 39 below must take place before the application is lodged with the court.
  2. The applicant must ensure that the following people are consulted about the intention to make the application —

(a)     any donee of a lasting power of attorney granted by the person;

(b)     any deputy appointed for the person by the court;

together with, if possible, at least three people in the following           categories —

(c)     anyone named by the person the application is about as someone to be consulted on the matters raised by the application; and

(d)     anyone engaged in caring for the person or interested in his or  her welfare.

  1. When consulting such people, the applicant must inform them of the following matters —

(a)     that the applicant is making an application to court;

(b)     that the application is to consider whether the person the application is about lacks capacity to make decisions in relation to his or her residence and care and whether he or she should be deprived of liberty in connection with the arrangements set out in the care plan;

(c)     what the proposed arrangements under the order are; and

(d)     that the applicant is under an obligation to inform the person the application is about of the matters listed in paragraph 35 above, unless in the circumstances it is inappropriate for the applicant to give that person such information.

Dispensing with notification or service of the application form

  1. Provided that the court is satisfied as to the adequacy of consultation with the person the application is about in accordance with paragraphs 35 to 37, and with other persons with whom consultation should take place in accordance with paragraphs 38 to 40, the court may dispense with notification of the issue of the application under rules 7.4, 9.9 and 9.10.

Court fees

  1. An application fee is payable for all applications, and if the court decides to hold a hearing before making a decision, a hearing feewill be payable.
  1. If an application is received without a fee it will be treated as incomplete and returned.

Applications suitable for the streamlined procedure

  1. As soon as practicable after receipt the court officers will consider the suitability of the application to be the subject of paper determination, or to be considered at an oral hearing.
  2. All applications considered suitable for the streamlined procedure will be referred to a judge for consideration without an oral hearing, as soon as practicable after receipt.

Applications not suitable for the streamlined procedure

  1. If the judge considers that the application is not suitable for the streamlined process, case management directions shall be given.

Applicant to supply a copy of the order to each person consulted

  1. The applicant must provide all persons consulted, including the person the application is about, with a copy of the order made pursuant to the streamlined procedure granting or refusing the authorisation of the deprivation of liberty.

Review of the authorisation

  1. An application for a review of the authorisation of the deprivation of liberty must be made in accordance with the terms of the order.

PART 3      PROVISIONS COMMON TO APPLICATIONS UNDER PART 1 AND PART 2

Hearing in private

  1. Part 4 of the Court of Protection Rules 2017 provides at rule 4.1, as supplemented by Practice Direction A to Part 4, that the general rule is that a hearing is held in private. Rule 4.3 allows the court to order that a hearing be in public if the criteria in rule 4.4 apply.

Costs

  1. The general rule, in rule 19.3 of the Court of Protection Rules 2017, is that in a personal welfare case there will be no order as to costs of the proceedings. The general rule applies to DoL applications.

Appeals

  1. Part 20 of the Court of Protection Rules 2017 applies to appeals. Permission is required to appeal (rules 20.5 and 20.6) and this will only be granted where the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard (rule 20.8).

s.15 MCA 2005 – Power to make declarations

‘(1)    The court may make declarations as to— 

(a)     whether a person has or lacks capacity to make a decision specified in the declaration; 

(b)     whether a person has or lacks capacity to make decisions on such matters as are described in the declaration; 

(c)     the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.’ 

A declaration involves the court declaring the law or a person’s rights or interests in relation to a particular matter, historically without reference to enforcement. It registers what exists and declares what it finds.

s.17 MCA 2005 –  Section 16 powers: personal welfare 

‘(1)    The powers under section 16 as respects P’s personal welfare extend in particular to— 

(a)     deciding where P is to live; … 

(e)     giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility.’ 

If a person lacks capacity in relation to a matter or matters concerning their welfare or property and affairs, s.16 enables the court by order, to make the necessary decisions on their behalf or to appoint a deputy to make those decisions for the person. The court’s powers are subject to the provisions of the Act and in particular, to sections 1 (the principles) and 4 (best interests).

s.18 MCA 2005 – Section 16 powers: property and affairs 

‘(1)    The powers under section 16 as respects P’s property and affairs extend in particular to— 

(a)     the control and management of P’s property; 

(b)     the sale, exchange, charging, gift or other disposition of P’s property; 

(c)     the acquisition of property in P’s name or on P’s behalf; 

(d)     the carrying on, on P’s behalf, of any profession, trade or business; 

(e)     the taking of a decision which will have the effect of dissolving a partnership of which P is a member; 

(f)      the carrying out of any contract entered into by P; 

(g)     the discharge of P’s debts and of any of P’s obligations, whether legally enforceable or not; 

(h)     the settlement of any of P’s property, whether for P’s benefit or for the benefit of others; 

(i)       the execution for P of a will; 

(j)       the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise; 

(k)     the conduct of legal proceedings in P’s name or on P’s behalf.’

Court of Protection Rules 2017

The Court of Protection Rules 2017 came into force on 1 December 2017. The Rules  are now in the same format as the Civil Procedure and Family Procedure Rules. The new-look Court of Protection Rules will also incorporate those rules relating to case management which have, since September 2016, been implemented by way of the Case Management Pilot. The Practice Directions supporting the 2007 Rules are replaced by the package of new Practice Directions supporting the 2017 Rules.

 The overriding objective

‘1.1.

(1)      These Rules have the overriding objective of enabling the court to deal with a case justly and at proportionate cost, having regard to the principles contained in the Act.

(2)      The court will seek to give effect to the overriding objective when it—

(a)      exercises any power under the Rules; or

(b)      interprets any rule or practice direction.

(3)      Dealing with a case justly and at proportionate cost includes, so far as is practicable—

(a)      ensuring that it is dealt with expeditiously and fairly;

(b)      ensuring that P’s interests and position are properly considered;

(c)      dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(d)      ensuring that the parties are on an equal footing;

(e)      saving expense;

(f)       allotting to it an appropriate share of the court’s resources, while taking account of the need to allot resources to other cases; and

(g)      enforcing compliance with rules, practice directions and orders.’

Participation of P

‘1.2.

(1)      The court must in each case, on its own initiative or on the application of any person, consider whether it should make one or more of the directions in paragraph (2), having regard to—

(a)      the nature and extent of the information before the court;

(b)      the issues raised in the case;

(c)      whether a matter is contentious; and

(d)      whether P has been notified in accordance with the provisions of Part 7 and what, if anything, P has said or done in response to such notification.

(2)      The directions are that—

(a)      P should be joined as a party;

(b)      P’s participation should be secured by the appointment of an accredited legal representative to represent P in the proceedings and to discharge such other functions as the court may direct;

(c)      P’s participation should be secured by the appointment of a representative whose function shall be to provide the court with information as to the matters set out in section 4(6) of the Act and to discharge such other functions as the court may direct;

(d)      P should have the opportunity to address (directly or indirectly) the judge determining the application and, if so directed, the circumstances in which that should occur;

(e)      P’s interests and position can properly be secured without any direction under sub­paragraphs (a) to (d) being made or by the making of an alternative direction meeting the overriding objective.

(3)      Any appointment or directions made pursuant to paragraph (2)(b) to (e) may be made for such period or periods as the court thinks fit.

(4)      Unless P has capacity to conduct the proceedings, an order joining P as a party shall only take effect—

(a)      on the appointment of a litigation friend on P’s behalf; or

(b)      if the court so directs, on or after the appointment of an accredited legal representative.

(5)      If the court has directed that P should be joined as a party but such joinder does not occur because no litigation friend or accredited legal representative is appointed, the court shall record in a judgment or order—

(a)      the fact that no such appointment was made; and

(b)      the reasons given for that appointment not being made.

(6)      A practice direction may make additional or supplementary provision in respect of any of the matters set out in this rule.

(The appointment of litigation friends, accredited legal representatives and representatives under paragraph (2)(c) is dealt with under Part 17.)

(“Accredited legal representative” is defined in rule 2.1.)’

The duty of the parties

‘1.4.

(1)      The parties are required to help the court to further the overriding objective.

(2)      Without prejudice to the generality of paragraph (1), each party is required to—

(a)      ask the court to take steps to manage the case if—

(i)       an order or direction of the court appears not to deal with an issue; or

(ii)      if a matter including any new circumstances, issue or dispute arises of which the court is unaware;

(b)      identify before issue if the case is within the scope of one of the case pathways and comply with the requirements of the applicable case pathway;

(c)      co-operate with the other parties and with the court in identifying and narrowing the issues that need to be determined by the court, and the timetable for that determination;

(d)      adhere to the timetable set by these Rules and by the court;

(e)      comply with all directions and orders of the court;

(f)       be full and frank in the disclosure of information and evidence to the court (including any disclosure ordered under Part 16);

(g)      co-operate with the other parties in all aspects of the conduct of the proceedings, including in the preparation of bundles.

(3)      If the court determines that any party has failed without reasonable excuse to satisfy the requirements of this rule, it may under rule 19.5 depart from the general rules about costs in so far as they apply to that party.

(Rule 16.2(2) deals with the requirements of general disclosure.’

Application of the Civil Procedure Rules and Family Procedure Rules

‘2.5.

(1)      In any case not expressly provided for by these Rules or the practice directions made under them, the court may apply either the Civil Procedure Rules 1998 (a) or the Family Procedure Rules 2010(b) (including in either case the practice directions made under them) with any necessary modifications, in so far as is necessary to further the overriding objective.

(2)      A reference in these Rules to the Civil Procedure Rules 1998 or to the Family Procedure Rules 2010 is to the version of those rules in force at the date specified for the purpose of that reference in the relevant practice direction.’

The court’s general powers of case management

‘3.1.

(1)      The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(2)      The court may—

(a)      extend or shorten the time for compliance with any rule, practice direction, or court order or direction (even if an application for extension is made after the time for compliance has expired);

(b)      adjourn or bring forward a hearing;

(c)      require P, a party, a party’s legal representative or litigation friend, or P’s rule 1.2 representative, to attend court;

(d)      hold a hearing and receive evidence by telephone or any other method of direct oral communication;

(e)      stay the whole or part of any proceedings or judgment either generally or until a specified date or event;

(f)       consolidate proceedings;

(g)      hear two or more applications on the same occasion;

(h)      direct a separate hearing of any issue;

(i)       decide the order in which issues are to be heard;

(j)       exclude an issue from consideration;

(k)      dismiss or give judgment on an application after a decision is made on a preliminary basis;

(l)       direct any party to file and serve an estimate of costs;

(m)     direct or limit the means of communication to be used by the parties; and

(n)      take any step or give any direction for the purpose of managing the case and furthering the overriding objective.

(3)      A judge to whom a matter is allocated may, if the judge considers that the matter is one which ought properly to be dealt with by another judge, transfer the matter to such a judge.

(4)      Where the court gives directions it may take into account whether or not a party has complied with any rule or practice direction.

(5)      The court may make any order it considers appropriate even if a party has not sought that order.

(6)      A power of the court under these Rules to make an order includes a power to vary or revoke the order.

(Rules 1.3 to 1.6 concern the duty of the court to further the overriding objective by actively managing cases, and the duty of parties, legal representatives and unrepresented litigants to assist the court in furthering the overriding objective.’

Court’s power to dispense with requirement of any rule

‘3.3.

In addition to its general powers and the powers listed in rule 3.1, the court may dispense with the requirements of any rule.’

Exercise of powers on the court’s own initiative

‘3.4.

(1)      Except where these Rules or another enactment make different provision, the court may exercise its powers on its own initiative.

(2)      The court may make an order on its own initiative without hearing the parties or giving them the opportunity to make representations.

(3)      Where the court proposes to make an order on its own initiative it may give the parties and any other person it thinks fit an opportunity to make representations and, where it does so, must specify the time by which, and the manner in which, the representations must be made.

(4)      Where the court proposes—

(a)      to make an order on its own initiative; and

(b)      to hold a hearing to decide whether to make the order,

it must give the parties and may give any person it thinks likely to be affected by the order at least 3 days’ notice of the hearing.’

Dealing with the application

‘3.6.

(1)      This rule and rule 3.7 are subject to any provision made by a practice direction in respect of the case pathway to which the case is allocated.

(2)      As soon as practicable after any application has been issued the court shall consider how to deal with it.

(3)      Where permission to start proceedings is required, and whether or not it has been applied for, the court’s consideration under paragraph (2) shall include whether to grant or refuse permission without a hearing, or to direct a hearing to consider whether permission should be granted.

(4)      The court may deal with an application or any part of an application at a hearing or without a hearing.

(5)      In considering whether it is necessary to hold a hearing, the court shall, as appropriate, have regard to—

(a)      the nature of the proceedings and the orders sought;

(b)      whether the application is opposed by a person who appears to the court to have an interest in matters relating to P’s best interests;

(c)      whether the application involves a substantial dispute of fact;

(d)      the complexity of the facts and the law;

(e)      any wider public interest in the proceedings;

(f)       the circumstances of P and of any party, in particular as to whether their rights would be adequately protected if a hearing were not held;

(g)      whether the parties agree that the court should dispose of the application without a

hearing; and

(h)      any other matter specified in the relevant practice direction.

(6)      Where the court considers that a hearing is necessary it shall—

(a)      give notice of the hearing date to the parties and to any other person it directs;

(b)      state what is to be dealt with at the hearing, including whether the matter is to be disposed of at that hearing; and

(c)      consider whether it is appropriate—

(i)       for the hearing or any part of it to be in public; and

(ii)      to make any order under rule 4.1, 4.2 or 4.3.

(Rule 3.9 and Practice Direction 3B make provision about the case pathways.)’

Directions

‘3.7.

(1)      The court may—

(a)      give directions in writing; or

(b)      set a date for a directions hearing; and

(c)      do anything else that may be set out in a practice direction.

(2)      When giving directions, the court may do any of the following—

(a)      require a report under section 49 of the Act and give directions as to any such report;

(b)     give directions as to any requirements contained in these Rules or a practice direction for the giving of notification to any person or for that person to do anything in response to a notification;

(c)      if the court considers that any other person or persons should be a party to the proceedings, give directions joining them as a party;

(d)      if the court considers that any party to the proceedings should not be a party, give directions for that person’s removal as a party;

(e)      give directions for the management of the case and set a timetable for the steps to be taken between the giving of directions and the hearing;

(f)       subject to rule 3.8, give directions as to the type of judge who is to hear the case;

(g)      give directions as to whether the proceedings or any part of them are to be heard in public, or as to whether any particular person should be permitted to attend the hearing, or as to whether any publication of the proceedings is to be permitted;

(h)      give directions as to the disclosure of documents, service of witness statements and any expert evidence;

(i)       give directions as to the attendance of witnesses and as to whether, and the extent to which, cross-examination will be permitted at any hearing; and

(j)       give such other directions as the court may think fit.

(3)      The court may give directions at any time—

(a)      on its own initiative; or

(b)      on the application of a party.

(4)      Subject to paragraphs (5) and (6) and unless these Rules or a practice direction provide otherwise or the court directs otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.

(5)      A party must apply to the court if that party wishes to vary—

(a)      the date the court has fixed for the final hearing; or

(b)      the period within which the final hearing is to take place.

(6)      The time specified by a rule or practice direction or by the court may not be varied by the parties if the variation would make it necessary to vary the date the court has fixed for any hearing or the period within which the final hearing is to take place.’

Allocation of cases to case pathways

‘3.9.

(1)      This rule provides for the allocation of cases to case pathways.

(2)      There are three case pathways—

(a)      the Personal Welfare Pathway;

(b)      the Property and Affairs Pathway;

(c)      the Mixed Welfare and Property Pathway.

(3)      Each case shall on issue be allocated to one of the three case pathways unless (subject to paragraph (5)) it is in an excepted class of case.

(4)      Excepted classes of case may be specified in a practice direction.

(5)      The court may direct that a case shall be allocated to a case pathway notwithstanding that it is in an excepted class of cases.

(6)      A practice direction may make provision for—

(a)      the scope of each case pathway; and

(b)      how cases in each case pathway are to be managed.

(Practice Direction 3B makes provision in relation to the case pathways and excepted classes of case.)’

Permission to start proceedings

‘8.1.

Subject to these Rules and to section 50(1) of, and paragraph 20 of Schedule 3 to, the Act, the applicant must apply for permission to start proceedings under the Act.

(Section 50(1) of the Act specifies the persons who do not need to apply for permission. Paragraph 20 of Schedule 3 to the Act specifies an application for which permission is not needed.)’

Where the court’s permission is not required

‘8.2.

The permission of the court is not required—

(a)      where an application is made by—

(i)       the Official Solicitor; or

(ii)      the Public Guardian;

(b)      where the application concerns—

(i)       P’s property and affairs;

(ii)      a lasting power of attorney which is, or purports to be, created under the Act; or

(iii)     an instrument which is, or purports to be, an enduring power of attorney;

(c)      where an application is made under section 21A of the Act (a);

(d)      where an application is made for an order under section 16(2)(a) of the Act, which is to be relied on to authorise the deprivation of P’s liberty pursuant to section 4A(3) of the Act(a);

(e)      where an application is made in accordance with Part 10;

(f)       where a person files an acknowledgment of service or notification in accordance with this Part or Part 9, for any order proposed that is different from that sought by the applicant; or

(g)      in any other case specified for this purpose in a practice direction.’

Starting proceedings

‘9.1.

(1)      Applications to the court to start proceedings must be made in accordance with this Part and, as applicable, Part 8 and the relevant practice directions.

(2)      The appropriate forms must be used in the cases to which they apply, with such variations as the case requires, but not so as to omit any information or guidance which any form gives to the intended recipient.

9.2.

(1)      The general rule is that proceedings are started when the court issues an application form at the request of the applicant.

(2)      An application form is issued on the date entered on the application form by the court.

9.3.

The application form must—

(a)      state the matter which the applicant wants the court to decide;

(b)      state the order which the applicant is seeking;

(c)      name—

(i)       the applicant;

(ii)      P;

(iii)     as a respondent, any person (other than P) whom the applicant reasonably believes to have an interest which means that that person ought to be heard in relation to the application (as opposed to being notified of it in accordance with rule 9.10);

(iv)     any person whom the applicant intends to notify in accordance with rule 9.10; and

(d)      if the applicant is applying in a representative capacity, state what that capacity is.

9.4 .

Where an applicant files the application form with the court, the applicant must also file—

(a)      in accordance with the relevant practice direction, any evidence on which the applicant intends to rely;

(b)      an assessment of capacity form, where this is required by the relevant practice direction;

(c)      any other documents referred to in the application form; and

(d)      such other information and material as may be set out in a practice direction.

9.5.

As soon as practicable after an application form is filed the court must issue it and do

anything else that may be set out in a practice direction.

9.6.

(1)      As soon as practicable and in any event within 14 days of the date on which the

application form was issued, the applicant must serve a copy of the application form on any person who is named as a respondent in the application form, together with copies of any documents filed in accordance with rule 9.4 and a form for acknowledging service.

(2)      The applicant must file a certificate of service within 7 days beginning with the date on which the documents were served.’

Responding to an application

‘9.12.

(1)      A person who is served with or notified of an application form and who wishes to take part in proceedings must file an acknowledgment of service or notification in accordance with this rule.

(2)      The acknowledgment of service or notification must be filed not more than 14 days after the application form was served or notification of the application was given.

(3)      The court must serve the acknowledgment of service or notification on the applicant and on any other person who has filed such an acknowledgment.

(4)      The acknowledgment of service or notification must—

(a)      state whether the person acknowledging service or notification consents to the application;

(b)      state whether that person opposes the application and, if so, set out the grounds for doing so;

(c)      state whether that person seeks a different order from that set out in the application form and, if so, set out what that order is;

(d)      provide an address for service, which must be within the jurisdiction of the court;; and

(e)      be signed by that person or that person’s legal representative.

(5)      Subject to rules 15.2 and 15.5 (restriction on filing an expert’s report and court’s power to restrict expert evidence), unless the court directs otherwise, where a person who has been served in accordance with rule 9.6, 9.7 or 9.8 opposes the application or seeks a different order, that person must within 28 days of such service file a witness statement containing any evidence upon which that person intends to rely.

(6)      In addition to complying with the other requirements of this rule, an acknowledgment of notification filed by a person notified of the application in accordance with rule 9.7(5), 9.8(5), 9.9 or 9.10 must—

(a)      indicate whether the person wishes to be joined as a party to the proceedings; and

(b)      state the person’s interest in the proceedings.

(7)      Subject to rules 15.2 and 15.5 (restriction on filing an expert’s report and court’s power to restrict expert evidence), unless the court directs otherwise, where a person has been notified in accordance with rule 9.7(5), 9.8(5), 9.9 or 9.10, that person must within 28 days of such notification file a witness statement containing any evidence of that person’s interest in the proceedings and, if that person opposes the application or seeks a different order, any evidence upon which that person intends to rely.

(8)      The court must consider whether to join a person mentioned in paragraph (6) as a party to the proceedings and, if it decides to do so, must make an order to that effect.

(9)      Where a person who is notified in accordance with rule 9.7(5), 9.8(5), 9.9 or 9.10 complies with the requirements of this rule, that person need not comply with the requirements of rule 9.15 (application to be joined as a party).

(10)    A practice direction may make provision about responding to applications.’

Orders for interim remedies

‘10.10.

(1)      The court may grant the following interim remedies—

(a)      an interim injunction;

(b)      an interim declaration; or

(c)      any other interim order it considers appropriate.

(2)      Unless the court orders otherwise, a person on whom an application form is served under Part 9, or who is given notice of such an application, may not apply for an interim remedy before filing an acknowledgment of service or notification in accordance with Part 9.

(3)      This rule does not limit any other power of the court to grant interim relief.’

Deprivation of liberty

‘11.1.

The practice direction to this Part sets out procedure governing—

(a)      applications to the court for orders relating to the deprivation, or proposed deprivation, of liberty of P; and

(b)      proceedings (for example, relating to costs or appeals) connected with or consequent on such applications.’

Procedure for disputing the court’s jurisdiction

‘13.1.

(1)      A person who wishes to—

(a)      dispute the court’s jurisdiction to hear an application; or

(b)      argue that the court should not exercise its jurisdiction,

may apply to the court at any time for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction that it may have.

(2)      An application under this rule must be—

(a)      made by using the form specified in the relevant practice direction; and

(b)      supported by evidence.

(3)      An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision, including—

(a)      setting aside the application;

(b)      discharging any order made;

(c)      staying the proceedings;

(d)      discharging any litigation friend or rule 1.2 representative.’

Participation in hearings

‘13.3.

(1)      The court may hear P on the question of whether or not an order should be made, whether or not P is a party to the proceedings.

(2)      The court may proceed with a hearing in the absence of P if it considers that it would be appropriate to do so.

(3)      A person other than P who is served with or notified of the application may only take part in a hearing if—

(a)      that person files an acknowledgment in accordance with these Rules and is made a party to the proceedings; or

(b)      the court permits.

(Rule 1.2 deals with participation of P.)’

Evidence

‘14.2.

The court may —

(a)      control the evidence by giving directions as to—

(i)       the issues on which it requires evidence;

(ii)      the nature of the evidence which it requires to decide those issues; and

(iii)     the way in which the evidence is to be placed before the court;

(b)      use its power under this rule to exclude evidence that would otherwise be admissible;

(c)      allow or limit cross-examination;

(d)      admit such evidence, whether written or oral, as it thinks fit; and

(e)      admit, accept and act upon such information, whether oral or written, from P, any protected party or any person who lacks competence to give evidence, as the court considers sufficient, although not given on oath and whether or not it would be admissible in a court of law apart from this rule.

14.3.

(1)      The general rule is that any fact which needs to be proved by evidence of a witness is to be proved—

(a)      where there is a final hearing, by the witness’s oral evidence; or

(b)      at any other hearing, or if there is no hearing, by the witness’s evidence in writing.

(2)      Where a witness is called to give oral evidence under paragraph (1)(a), the witness statement of that witness shall stand as his or her evidence in chief unless the court directs otherwise.

(3)      A witness giving oral evidence at the final hearing may, if the court permits—

(a)      amplify his or her witness statement; and

(b)      give evidence in relation to new matters which have arisen since the witness statement was made.

(4)      The court may so permit only if it considers that there is good reason not to confine the evidence of the witness to the contents of the witness statement.

(5)      This rule is subject to—

(a)      any provision to the contrary in these Rules or elsewhere; or

(b)      any order or direction of the court.

14.4.

A party may not rely on written evidence unless—

(a)      it has been filed in accordance with these Rules or a practice direction;

(b)      it is expressly permitted by these Rules or a practice direction; or

(c)      the court gives permission.

 14.5.

The court may allow a witness to give evidence through a video link or by other

communication technology.

14.6.

(1)      A witness statement is a written statement by a person which contains the evidence which that person would be allowed to give orally.

(2)      The court will give directions about the service of any witness statement upon which a party intends to rely at the final hearing.

(3)      The court may give directions as to the order in which witness statements are to be served.

(Rules 5.2 and 14.7 require witness statements to be verified by a statement of truth.)

14.7.

A witness statement must contain a statement of truth and comply with the requirements set out in the relevant practice direction.

14.8.

(1)      A party who wishes to file a witness statement for use at the final hearing, but is unable to do so, may apply without notice to be permitted to file a witness summary instead.

(2)      A witness summary is a summary of—

(a)      the evidence, if known, which would otherwise be included in a witness statement; or

(b)      if the evidence is not known, the matters about which the party filing the witness summary proposes to question the witness.

(3)      Unless the court directs otherwise, a witness summary must include the name and address of the intended witness.

(4)      Unless the court directs otherwise, a witness summary must be filed within the period in which a witness statement would have had to be filed.

(5)      Where a party files a witness summary, so far as practicable, rules 14.3(3)(a) (amplifying witness statements) and 14.6 (service of witness statements for use at final hearing) shall apply to the summary.’

Experts

‘15.1.

A reference to an expert in this Part—

(a)      is to an expert who has been instructed to give or prepare evidence for the purpose of court proceedings; but

(b)      does not include any person instructed to make a report under section 49 of the Act.

15.2. 

(1)      No person may file expert evidence unless the court or a practice direction permits, or if it is filed with the application form and is evidence—

(a)      that P is a person who lacks capacity to make a decision or decisions in relation to the matter or matters to which the application relates;

(b)      as to P’s best interests; or

(c)      that is required by any rule or practice direction to be filed with the application form.

(2)      An applicant may only rely on any expert evidence so filed in support of the application form to the extent and for the purposes that the court allows.

(Rule 9.4(a) requires the applicant to file any evidence upon which the applicant wishes to rely with the application form.)

15.3.

(1)      Expert evidence shall be restricted to that which is necessary to assist the court to resolve the issues in the proceedings.

(2)      The court may give permission to file or adduce expert evidence as mentioned in rule 15.2(1) and 15.5(1) only if satisfied that the evidence—

(a)      is necessary to assist the court to resolve the issues in the proceedings; and

(b)      cannot otherwise be provided either—

(i)       by a rule 1.2 representative; or

(ii)      in a report under section 49 of the Act.

15.4.

(1)      It is the duty of the expert to help the court on the matters within the expert’s

expertise.

(2)      This duty overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid.

15.5.

(1)      Subject to rule 15.2, no party may file or adduce expert evidence unless the court or a practice direction permits.

(2)      When a party applies for a direction under this rule, that party must—

(a)      identify the field in respect of which that party wishes to rely upon expert evidence, and the issues to which the expert evidence is to relate;

(b)      where practicable, identify the expert in that field upon whose evidence the party wishes to rely;

(c)      provide any other material information about the expert;

(d)      state whether the expert evidence could be obtained from a single joint expert;

(e)      provide any other information or documents required by a practice direction; and

(f)       provide a draft letter of instruction to the expert.

(3)      When deciding whether to give permission as mentioned in paragraph (1), the court is to have regard in particular to—

(a)      the issues to which the expert evidence would relate;

(b)      the questions which the expert would answer;

(c)      the impact which giving permission would be likely to have on the timetable, duration and conduct of the proceedings;

(d)      any failure to comply with any direction of the court about expert evidence; and

(e)      the cost of the expert evidence.

(4)      Where a direction is given under this rule, the court shall specify—

(a)      the field or fields in respect of which the expert evidence is to be provided;

(b)      the questions which the expert is required to answer; and

(c)      the date by which the expert is to provide the evidence.

(5)      The court may specify the person who is to provide the evidence referred to in paragraph (3).

(6)      Where a direction is given under this rule for a party to call an expert or put in evidence an expert’s report, the court shall give directions for the service of the report on the parties and on such other persons as the court may direct.

(7)      The court may limit the amount of the expert’s fees and expenses that the party who wishes to rely upon the expert may recover from any other party.

15.6.

Expert evidence is to be given in a written report unless the court directs otherwise.

15.7.

(1)      A party may put written questions to—

(a)      an expert instructed by another party; or

(b)      a single joint expert appointed under rule 15.12, about a report prepared by such a person.

(2)      Written questions under paragraph (1)—

(a)      may be put once only;

(b)      must be put within 28 days beginning with the date on which the expert’s report was served;

(c)      must be for the purpose only of clarification of the report; and

(d)      must be copied and sent to the other parties at the same time as they are sent to the expert.

(3)      Paragraph (2) does not apply in any case where—

(a)      the court permits it to be done on a further occasion;

(b)      the other party or parties agree; or

(c)      any practice direction provides otherwise.

(4)      An expert’s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert’s report.

(5)      Paragraph (6) applies where—

(a)      a party has put a written question to an expert instructed by another party in accordance with this rule; and

(b)      the expert does not answer that question.

(6)      The court may make one or both of the following orders in relation to the party who instructed the expert—

(a)      that the party may not rely upon the evidence of that expert; or

(b)      that the party may not recover the fees and expenses of that expert, or part of them, from any other party.

(7)      Unless the court directs otherwise, and subject to any final costs order that may be made, the instructing party is responsible for the payment of the expert’s fees and expenses, including the expert’s costs of answering questions put by any other party.

15.8.

(1)      The court may give directions as to the matters to be covered in an expert’s report.

(2)      An expert’s report must comply with the requirements set out in the relevant practice direction.

(3)      At the end of an expert’s report there must be a statement that the expert—

(a)      understands his or her duty to the court; and

(b)      has complied with that duty.

(4)      The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

(5)      The instructions to the expert shall not be privileged against disclosure.

15.9.

Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at any hearing in the proceedings.

15.10.

(1)      The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to—

(a)      identify and discuss the expert issues in the proceedings; and

(b)      where possible, reach an agreed opinion on those issues.

(2)      The court may specify the issues which the experts must discuss.

(3)      The court may direct that following a discussion between the experts they must prepare a statement for the court showing—

(a)      those issues on which they agree; and

(b)      those issues on which they disagree and a summary of their reasons for disagreeing.

(4)      Unless the court directs otherwise, the content of the discussions between experts may be referred to at any hearing or at any stage in the proceedings.

15.11.

(1)      An expert may file a written request for directions to assist in carrying out the

expert’s functions as an expert.

(2)      An expert must, unless the court directs otherwise, provide a copy of any proposed request for directions under paragraph (1)—

(a)      to the party instructing the expert, at least 7 days before filing the request; and

(b)      to all other parties, at least 4 days before filing it.

(3)      The court, when it gives directions, may also direct that a party be served with a copy of the directions.

15.12.

(1)      Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by one expert only.

(2)      The parties wishing to submit the expert evidence are called “the instructing parties”.

(3)      Where the instructing parties cannot agree who should be the expert, the court may—

(a)      select the expert from a list prepared or identified by the instructing parties; or

(b)      direct the manner by which the expert is to be selected.

15.13.

(1)      Where the court gives a direction under rule 15.12 for a single joint expert to be used, the instructions are to be contained in a jointly agreed letter unless the court directs otherwise.

(2)      Where the instructions are to be contained in a jointly agreed letter, in default of agreement the instructions may be determined by the court on the written request of any instructing party copied to the other instructing parties.

(3)      Where the court permits the instructing parties to give separate instructions to a single joint expert, unless the court directs otherwise, when an instructing party gives instructions to the expert, that party must at the same time send a copy of the instructions to the other instructing party or parties.

(4)      The court may give directions about—

          (a)      the payment of the expert’s fees and expenses; and

(b)      any inspection, examination or experiments which the expert wishes to carry out.

(5)      The court may, before an expert is instructed, limit the amount that can be paid by way of fees and expense to the expert.

(6)      Unless the court directs otherwise, and subject to any final costs order that may be made, the instructing parties are jointly and severally liable for the payment of the expert’s fees and expenses.’

Disclosure

‘16.1.

A party discloses a document by stating that the document exists or has existed.

General or specific disclosure

16.2.

(1)      The court may either on its own initiative or on the application of a party make an order to give general or specific disclosure.

(2)      General disclosure requires a party to disclose—

(a)      the documents on which that party relies; and

(b)      the documents which—

(i)       adversely affect that party’s own case;

(ii)      adversely affect another party’s case; or

(iii)     support another party’s case.

(3)      An order for specific disclosure is an order that a party must do one or more of the following things—

(a)      disclose documents or classes of documents specified in the order;

(b)      carry out a search to the extent stated in the order; or

(c)      disclose any document located as a result of that search.

(4)      A party’s duty to disclose documents is limited to documents which are or have been in that party’s control.

(5)      For the purposes of paragraph (4) a party has or has had a document in that party’s control if—

(a)      it is or was in that party’s physical possession;

(b)      that party has or has had possession of it; or

(c)      that party has or has had a right to inspect or take copies of it.

16.3.

(1)      This rule applies where the court makes an order under rule 16.2 to give general or specific disclosure.

(2)      Each party must make, and serve on every other party, a list of documents to be disclosed.

(3)      A copy of each list must be filed within 7 days of the date on which it is served.

(4)      The list must identify the documents in a convenient order and manner and as concisely as possible.

(5)      The list must indicate—

(a)      the documents in respect of which the party claims a right or duty to withhold inspection (see rule 16.7); and

(b)      the documents that are no longer in the party’s control, stating what has happened to them.

16.4.

(1)      Where the court makes an order to give general or specific disclosure under rule 16.2, any party to whom the order applies is under a continuing duty to provide such disclosure as is required by the order until the proceedings are concluded.

(2)      If a document to which the duty of disclosure imposed by paragraph (1) extends comes to a party’s notice at any time during the proceedings, that party must immediately notify every other party.

16.5.

(1)      A party to whom a document has been disclosed has a right to inspect any document disclosed to that party except where—

(a)      the document is no longer in the control of the party who disclosed it; or

(b)      the party disclosing the document has a right or duty to withhold inspection of it.

(2)      The right to inspect disclosed documents extends to any document mentioned in—

(a)      a document filed or served in the course of the proceedings by any other party; or

(b)      correspondence sent by any other party.

16.6.

(1)      Where a party has a right to inspect a document, that party—

(a)      must give the party who disclosed the document written notice of the wish to inspect it; and

(b)      may request a copy of the document.

(2)      Not more than 14 days after the date on which the party who disclosed the document received the notice under paragraph (1)(a), that party must permit inspection of the document at a convenient place and time.

(3)      Where a party has requested a copy of the document, the party who disclosed the document must supply the requesting party with a copy not more than 14 days after the date on which the request was received.

(4)      For the purposes of paragraph (2), the party who disclosed the document must give reasonable notice of the time and place for inspection.

(5)      For the purposes of paragraph (3), the party requesting a copy of the document is responsible for the payment of reasonable copying costs, subject to any final costs order that may be made.

16.7.

(1)      A party who wishes to claim a right or duty to withhold inspection of a document, or part of a document, must state in writing—

(a)      that that party has such a right or duty; and

(b)      the grounds on which that party claims that right or duty.

(2)      The statement must be made in the list in which the document is disclosed (see rule 16.3(2)).

(3)      A party may, by filing an application notice in accordance with Part 10, apply to the court to decide whether the claim made under paragraph (1) should be upheld.

16.8.

A party may not rely upon any document which that party fails to disclose or in respect of which that party fails to permit inspection, unless the court permits.’

Costs

‘19.1.

(1)      In this Part—

“authorised court officer” means any officer of the Senior Courts Costs Office whom the Lord Chancellor has authorised to assess costs;

“costs” include fees, charges, disbursements, expenses, remuneration and any reimbursement allowed to a litigant in person;

“costs judge” means a taxing Master of the Senior Courts;

“costs officer” means a costs judge or an authorised court officer;

“detailed assessment” means the procedure by which the amount of costs or remuneration is decided by a costs officer in accordance with Part 47 of the Civil Procedure Rules 1998 (which are applied to proceedings under these Rules, with modifications, by rule 19.6);

“fixed costs” are to be construed in accordance with the relevant practice direction;

“fund” includes any estate or property held for the benefit of any person or class of persons, and any fund to which a trustee or personal representative is entitled in that capacity;

“paying party” means a party liable to pay costs;

“pro bono representation” means representation provided free of charge;

 “receiving party” means a party entitled to be paid costs;

“summary assessment” means the procedure by which the court, when making an order about costs, orders payment of a sum of money instead of fixed costs or detailed assessment.

(2)      The costs to which rules in this Part apply include—

(a)      where the costs may be assessed by the court, costs payable by a client to his or her legal representative; and

(b)      costs which are payable by one party to another party under the terms of a contract, where the court makes an order for an assessment of those costs.

(3)      Where advocacy or litigation services are provided to a client under a conditional fee agreement, costs are recoverable under this Part notwithstanding that the client is liable to pay his or her legal representative’s fees and expenses only to the extent that sums are recovered in respect of the proceedings, whether by way of costs or otherwise.

(4)      In paragraph (3), the reference to a conditional fee agreement means an agreement enforceable under section 58 of the Courts and Legal Services Act 1990(a).

19.2.

Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings, or of that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to P’s estate.

19.3.

Where the proceedings concern P’s personal welfare the general rule is that there will be no order as to the costs of the proceedings, or of that part of the proceedings that concerns P’s personal welfare.

19.4.

Where the proceedings concern both property and affairs and personal welfare the court, in so far as practicable, shall apportion the costs as between the respective issues.

19.5.

(1)      The court may depart from rules 19.2 to 19.4 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances including—

(a)      the conduct of the parties;

(b)      whether a party has succeeded on part of that party’s case, even if not wholly successful; and

(c)      the role of any public body involved in the proceedings.

(2)      The conduct of the parties includes—

(a)      conduct before, as well as during, the proceedings;

(b)      whether it was reasonable for a party to raise, pursue or contest a particular matter;

(c)      the manner in which a party has made or responded to an application or a particular issue;

(d)      whether a party who has succeeded in that party’s application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and

(e)      any failure by a party to comply with a rule, practice direction or court order.

(3)      Without prejudice to rules 19.2 to 19.4 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.

19.6.

(1)      Subject to the provisions of these Rules, Parts 44, 46 and 47 of the Civil Procedure Rules 1998(a) (“the 1998 Rules”) apply with the modifications in this rule and such other modifications as may be appropriate, to costs incurred in relation to proceedings under these Rules as they apply to costs incurred in relation to proceedings in the High Court.

(2)      Rules 3.12 to 3.18 of the 1998 Rules and Practice Direction 3E supporting those Rules do not apply in relation to proceedings under these Rules.

(3)      The provisions of Part 47 of the 1998 Rules apply with the modifications in this rule and such other modifications as may be appropriate, to a detailed assessment of the remuneration of a deputy under these Rules as they apply to a detailed assessment of costs in proceedings to which the 1998 Rules apply.

(4)      Where the definitions in Part 44 (referred to in Parts 44, 46 and 47) of the 1998 Rules are different from the definitions in rule 19.1 of these Rules, the latter definitions prevail.

(5)      Rules 44.2(1) to (5), 44.4(3)(h), 44.5, 44.6, 44.9 and 44.13 to 44.18 of the 1998 Rules do not apply.

(6)      For rule 46.1(1) of the 1998 Rules there is substituted—

“(1)   This paragraph applies where a person applies for an order for specific disclosure before the commencement of proceedings.”.

(7)      Rules 46.2, 46.5 and 46.10 to 46.19 of the 1998 Rules do not apply.

(8)      In rule 47.3(1)(c) of the 1998 Rules, the words “unless the costs are being assessed under rule 46.4 (costs where money is payable to a child or protected party)” are omitted.

(9)      In rule 47.3(2) of the 1998 Rules, the words “or a District Judge” are omitted.

(10)    Rule 47.4(3) and (4) of the 1998 Rules do not apply.

(11)    Rules 47.9(4), 47.10 and 47.11 of the 1998 Rules do not apply where the costs are to be

paid by P or charged to P’s estate.

Detailed assessment of costs

19.7.

(1)      Where the court orders costs to be assessed by way of detailed assessment, the

detailed assessment proceedings shall take place in the High Court.

(2)      A fee is payable in respect of the detailed assessment of costs and on an appeal against a decision made in a detailed assessment of costs.

(3)      Where a detailed assessment of costs has taken place, the amount payable by P is the amount which the court certifies as payable.

19.8.

Where two or more persons having the same interest in relation to a matter act in relation to the proceedings by separate legal representatives, they shall not be permitted more than one set of costs of the representation unless and to the extent that the court certifies that the circumstances justify separate representation.

19.9.

Any costs incurred by the Official Solicitor in relation to proceedings under these Rules or in carrying out any directions given by the court and not provided for by remuneration under rule 19.13 shall be paid by such persons or out of such funds as the court may direct.

19.10.

Where the court orders a party, or P, to pay costs to another party it may either—

(a)      make a summary assessment of the costs; or

(b)      order a detailed assessment of the costs by a costs officer;

unless any rule, practice direction or other enactment provides otherwise.

19.11.

An order or direction that costs incurred during P’s lifetime be paid out of or charged on P’s estate may be made within 6 years after P’s death.

19.12.

(1)      Where the court is considering whether to make a costs order in favour of or against a person who is not a party to proceedings, that person must be—

(a)      added as a party to the proceedings for the purposes of costs only;

(b)      served with such documents as the court may direct; and

(c)      given a reasonable opportunity to attend any hearing at which the court will consider the matter further.

(2)      This rule does not apply where the court is considering whether to make an order against the Lord Chancellor in proceedings in which the Lord Chancellor has provided legal aid to a party to the proceedings.

19.13.

(1)      Where the court orders that a deputy, donee or attorney is entitled to remuneration out of P’s estate for discharging functions as such, the court may make such order as it thinks fit including an order that—

(a)      the deputy, donee or attorney be paid a fixed amount;

(b)      the deputy, donee or attorney be paid at a specified rate; or

(c)      the amount of the remuneration shall be determined in accordance with the schedule of fees set out in the relevant practice direction.

(2)      Any amount permitted by the court under paragraph (1) shall constitute a debt due from P’s estate.

(3)      The court may order a detailed assessment of the remuneration by a costs officer in accordance with rule 19.10(b).

19.14.

A practice direction may make further provision in respect of costs in proceedings.’

Care Act 2014 and Commentary

Introduction

The Care Act 2014 was enacted following a 2011 report of the Law Commission (at that time chaired by Sir James Munby), Adult Social Care (Law Com No. 326). The most important section of the Act is Section 1, which provides:-

“Promoting individual well-being

1.

(1)     The general duty of a local authority, in exercising a function under this Part in the case of an individual, is to promote that individual’s well-being.

(2)     “Well-being”, in relation to an individual, means that individual’s well-being so far as relating to any of the following-

(a)     personal dignity (including treatment of the individual with respect);

(b)     physical and mental health and emotional well-being;

(c)     protection from abuse and neglect;

(d)     control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);

(e)     participation in work, education, training or recreation;

(f)      social and economic well-being;

(g)     domestic, family and personal relationships;

(h)     suitability of living accommodation;

(i)       the individual’s contribution to society.

(3)     In exercising a function under this Part in the case of an individual, a local authority must have regard to the following matters in particular:–

(a)     the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being;

(b)     the individual’s views, wishes, feelings and beliefs;

(c)     the importance of preventing or delaying the development of needs for care and support or needs for support and the importance of reducing needs of either kind that already exist;

(d)     the need to ensure that decisions about the individual are made having regard to all the individual’s circumstances (and are not based only on the individual’s age or appearance or any condition of the individual’s or aspect of the individual’s behaviour which might lead others to make unjustified assumptions about the individual’s well-being);

(e)     the importance of the individual participating as fully as possible in decisions relating to the exercise of the function concerned and being provided with the information and support necessary to enable the individual to participate;

(f)      the importance of achieving a balance between the individual’s well-being and that of any friends or relatives who are involved in caring for the individual;

(g)     the need to protect people from abuse and neglect;

(h)     the need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.”

The duty under s 1(1) is distinct from the duty under s 1(3); and that s 1(1) and (2) impose a distinct duty upon the Defendant, in each individual case, to promote the individual’s wellbeing including physical and mental health and emotional wellbeing. However, the primary focus of the claim before the judge, and before us, has been Section 1(3)(d).

Section 78 (1) of the 2014 Act requires local authorities, when exercising functions given to them by Part 1 of the Act, to follow general guidance issued by the Secretary of State. There is a single such document, Care and Support Statutory Guidance. It includes these paragraphs:-

“1.1   The core purpose of adult care and support is to help people to achieve the outcomes that matter to them in their life.

1.2     Local authorities must promote wellbeing when carrying out any of their care and support functions in respect of a person … it is a guiding principle that puts wellbeing at the heart of care and support……..

1.7     Promoting wellbeing involves actively seeking improvements in the aspects of wellbeing.”

Section 9 of the Act makes provision for needs assessments:

“Assessment of an adult’s needs for care and support

(1)     Where it appears to a local authority that an adult may have needs for care and support, the authority must assess –

(a)     whether the adult does have needs for care and support, and

(b)     if the adult does, what those needs are.

(2)     An assessment under subsection (1) is referred to in this Part as a “needs assessment”…….

(4)     A needs assessment must include an assessment of –

(a)     the impact of the adult’s needs for care and support on the matters specified in section 1(2),

(b)     the outcomes that the adult wishes to achieve in day-to-day life, and

(c)     whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes.”

The judge made the following observations on this sub-section with which I would agree. First, the assessment duty is a duty upon the local authority and the assessment under s 9(1)(a) and (b) is an objective assessment made by the local authority (usually acting through its social workers or occupational therapist). Secondly, under s 9(4), there is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes. On the other hand if, in the course of a needs assessment, the local authority does not assess the matters specified in s.9(4) (including the impact on well-being matters set out in s.1(2)), then there is a breach of the statutory duty.

Section 13 of the Act and the Care and Support (Eligibility Criteria) Regulations 2015 (SI 313 of 2015) make provision for eligibility criteria, set, for the first time, on a national basis. Where the local authority is satisfied that the adult has needs for care and support, it must determine whether any of the identified needs meet the eligibility criteria. Where at least some of those needs meet the criteria, the local authority must consider what could be done to meet those needs and whether the adult wants those needs to be met by the local authority.

Section 18 imposes a duty upon the local authority, having made a determination of the needs which are eligible under section 13, to meet the adult’s needs which meet the eligibility criteria, subject to a means test analysis.

Sections 24 to 26 make provision for care planning. Section 24 sets out the steps which the local authority must take following the needs assessment. Section 25 then prescribes the contents of a care and support plan. By s 25(3), the local authority must involve both the adult and any carer that the adult has in the preparation of a care and support plan. By s 25(5) it must take all reasonable steps to reach agreement with the adult for whom the plan is being prepared about how the local authority should meet the needs in question.

Section 26 deals with what should be contained within a personal budget and provides:

“(1)    A personal budget for an adult is a statement which specifies –

(a)     the cost to the local authority of meeting those of the adult’s needs which it is required or decides to meet as mentioned in section 24(1)

(b)     the amount which, on the basis of the financial assessment, the adult must pay towards that cost, and

(c)     if on that basis the local authority must itself pay towards the cost, the amount which it must pay”

As regards transparency and sufficiency in the personal budget, relevant parts of the Statutory Guidance include the following:

“11.25         The Act states that the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs. In establishing the ‘cost to the local authority’, consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget. To further aid the transparency principle, these cost assumptions should be shared with the person so they are aware of how their personal budget was established.”

Sections 31 to 33, and the Care and Support (Direct Payments) Regulations 2014 (SI 2871 of 2014), deal with direct payments. Direct payments are defined in s 31(1), which provides that s 31 applies where “…..:

(a)     a personal budget for an adult specifies an amount which the local authority must pay towards the cost of meeting the needs to which the personal budget relates, and

(b)     the adult requests the local authority to meet some or all of those needs by making payments to the adult or a person nominated by the adult.”’

Application

The Explanatory Note states,

Territorial extent and application: Wales

‘35.     Part 1 (Care and Support) in general extends to England and Wales but applies to local authorities in England only. This is because social care is a devolved matter for Wales. However, the provisions in relation to cross-border placements (section 39(8) and Schedule 1), certain provisions on provider failure (sections 49 to 52) and the Human Rights Act 1998 provision (section 73) also apply to Wales. The Law Commission’s report on adult social care makes recommendations in relation to both England and Wales, but the National Assembly for Wales has passed its own legislation, the Social Services and Well-being (Wales) Act 2014.

  1. Part 2 (Care Standards) also extends to England and Wales but applies to England only. This Part amends provisions in the 2008 Act relating to the Care Quality Commission (CQC) and provisions in the National Health Service Act 2006 (the 2006 Act) and the Health and Social Care Act 2012 relating to regulation of NHS foundation trusts. The CQC’s functions only apply in England by virtue of the fact that the “regulated activities” which it regulates must involve, or be connected with, the provision of health or social care in, or in relation to, England: section 8(2)(a) of the 2008 Act. NHS foundation trusts are established under section 30 of the 2006 Act to provide goods and services for the purposes of the health service in England only.
  1. In Part 3 (Health), the majority of provisions relating to Health Education England (HEE) extend to England and Wales and those relating to the Health Research Authority (HRA) extend to the whole of the United Kingdom. The functions of HEE only affect England, by virtue of the fact that they are derived from the Secretary of State’s functions to do with the planning and delivery of education and training for persons connected with the provision of health services in England (section 1F of the 2006 Act). However, while neither HEE nor the HRA will take on any devolved functions, there are some implications for the devolved administrations in relation to the establishment of these bodies as non-departmental public bodies.
  1. HEE will have a power to exercise any of its education and training functions on behalf of a devolved authority, but only when it is asked to do so: paragraph 17 of Schedule 5.
  1. The Act places the HRA and each of the devolved administrations under a duty to co-operate with one another with a view to co-ordinating and standardising the regulation of health and social care research in the UK: section 111(4). The HRA and certain specified bodies which carry out some devolved functions in relation to health and social care research will also be under a duty to co-operate with each other with a view to co-ordinating and promoting regulatory practice: section 111(1) In relation to Wales, this is the Human Tissue Authority.
  1. In relation to England and Wales, the HRA will now also undertake the Secretary of State’s power to approve the processing of confidential patient information for the purposes of medical research. HRA’s committee established under paragraph 8(1) of Schedule 7 will advise HRA and the Secretary of State in respect of their respective functions under the Health Service (Control of Patient Information) Regulations 2002 (S.I. 2002/1438) (“Control of Patient Information Regulations”) which extend to England and Wales: see section 117.
  1. The HRA will also be able to take on related functions from any of the devolved administrations where the parties agree: paragraph 15 of Schedule 7. Steps will also be taken to harmonise the legislation relating to ethics committees across the UK.
  1. Section 120 on Trust Special Administration remit extends to England and Wales but applies to England only.
  1. Section 121 (Integration Fund) extends to England and Wales but applies to England only. This section amends and inserts a new provision in the National Health Service Act 2006 relating to the National Health Service Commissioning Board and clinical commissioning groups, both of which exercise functions in relation to the health service in England only.
  1. Regarding section 122 (Information), subsections concerning the functions of the Health and Social Care Information Centre (HSCIC) under the Health and Social Care Act 2012 apply to England only, as HSCIC currently has functions in relation only to England. However the provisions for the advice to be given to HSCIC by the committee to be appointed by the HRA under paragraph 8(1) of Schedule 7 apply to England and Wales, as further functions may be conferred on HSCIC in regulations under section 251 of the National Health Service Act 2006. Any implications for Wales in relation to the function described at paragraph 8(1)(c)(i) of Schedule 7 would arise in the context of making of regulations, rather than as a result of this provision, and would therefore be agreed at that point. The implications for Wales would arise as a result of the extent of section 251 of the 2006 Act and the Control of Patient Information Regulations.

Territorial extent and application: Northern Ireland

  1. Social care is a devolved matter for Northern Ireland so Part 1 in general applies to local authorities in England only. However, the provisions in relation to cross-border placements (section 39(8) and Schedule 1), certain provisions on provider failure (sections 49 to 52) and the Human Rights Act 1998 provision (section 73) extend to Northern Ireland. Certain provider failure duties also apply to Health and Social Care trusts in Northern Ireland.
  1. In Part 3, while neither Health Education England nor the Health Research Authority will take on any devolved functions, there are some implications for the devolved administrations in relation to the establishment of these bodies as non-departmental public bodies.
  1. Health Education England (HEE) will have a power to exercise any of its education and training functions on behalf of Northern Ireland, but only when it is asked to do so: paragraph 17 of Schedule 5.
  1. The provisions on Health Research Authority (HRA) extend to the whole of the United Kingdom. The Act places the HRA and each of the devolved administrations under a duty to co-operate with one another with a view to co-ordinating and standardising the regulation of health and social care research in the UK: section 111(4). The HRA and certain specified bodies which carry out some devolved functions in relation to health and social care research will also be under a duty to co-operate with each other with a view to co-ordinating and promoting regulatory practice: section 111(1) In relation to Northern Ireland, this is the Human Tissue Authority, the licensing authority for the purposes of the Medicines Act 1968 and the Administration of Radioactive Substances Advisory Committee.
  1. The HRA will also be able to take on related functions from Northern Ireland where the parties agree: paragraph 15 of Schedule 7. Steps will also be taken to harmonise the legislation relating to ethics committees across the UK.

Territorial extent and application: Scotland 

  1. Social care is a devolved matter for Scotland so Part 1 in general applies to local authorities in England only. However, the provisions in relation to cross-border placements (section 39(8) and Schedule 1), certain provisions on provider failure and the Human Rights Act 1998 provision (section 73) extend to Scotland.
  1. In Part 3, while neither Health Education England nor the Health Research Authority will take on any devolved functions, there are some implications for the devolved administrations in relation to the establishment of these bodies as non-departmental public bodies.
  1. Health Education England (HEE) will have a power to exercise any of its education and training functions on behalf of Scotland, but only when it is asked to do so: paragraph 17 of Schedule 5.
  1. The provisions on Health Research Authority (HRA) extend to the whole of the United Kingdom. The Act places the HRA and each of the devolved administrations under a duty to co-operate with one another with a view to co-ordinating and standardising the regulation of health and social care research in the UK: section 111(4). The HRA and certain specified bodies which carry out some devolved functions in relation to health and social care research will also be under a duty to co-operate with each other with a view to co-ordinating and promoting regulatory practice: section 111(1) In relation to Scotland, this is the Human Tissue Authority.
  1. The HRA will also be able to take on related functions from Scotland where the parties agree: paragraph 15 of Schedule 7. Steps will also be taken to harmonise the legislation relating to ethics committees across the UK.’

Promoting individual well-being (s.1)

(1)     The general duty of a local authority, in exercising a function under this Part in the case of an individual, is to promote that individual’s well-being.

(2)     “Well-being”, in relation to an individual, means that individual’s well-being so far as relating to any of the following—

(a)     personal dignity (including treatment of the individual with respect);

(b)     physical and mental health and emotional well-being;

(c)     protection from abuse and neglect;

(d)     control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);

(e)     participation in work, education, training or recreation;

(f)      social and economic well-being;

(g)     domestic, family and personal relationships;

(h)     suitability of living accommodation;

(i)       the individual’s contribution to society.

(3)     In exercising a function under this Part in the case of an individual, a local authority must have regard to the following matters in particular—

(a)     the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being;

(b)     the individual’s views, wishes, feelings and beliefs;

(c)     the importance of preventing or delaying the development of needs for care and support or needs for support and the importance of reducing needs of either kind that already exist;

(d)     the need to ensure that decisions about the individual are made having regard to all the individual’s circumstances (and are not based only on the individual’s age or appearance or any condition of the individual’s or aspect of the individual’s behaviour which might lead others to make unjustified assumptions about the individual’s well-being);

(e)     the importance of the individual participating as fully as possible in decisions relating to the exercise of the function concerned and being provided with the information and support necessary to enable the individual to participate;

(f)      the importance of achieving a balance between the individual’s well-being and that of any friends or relatives who are involved in caring for the individual;

(g)     the need to protect people from abuse and neglect;

(h)     the need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.

(4)     “Local authority” means—

(a)     a county council in England,

(b)     a district council for an area in England for which there is no county council,

(c)     a London borough council, or

(d)     the Common Council of the City of London.

Commentary

Promoting integration of care and support with health services etc (s.3)

(1)     A local authority must exercise its functions under this Part with a view to ensuring the integration of care and support provision with health provision and health-related provision where it considers that this would—

(a)     promote the well-being of adults in its area with needs for care and support and the well-being of carers in its area,

(b)     contribute to the prevention or delay of the development by adults in its area of needs for care and support or the development by carers in its area of needs for support, or

(c)     improve the quality of care and support for adults, and of support for carers, provided in its area (including the outcomes that are achieved from such provision).

(2)     “Care and support provision” means—

(a)     provision to meet adults’ needs for care and support,

(b)     provision to meet carers’ needs for support, and

(c)     provision of services, facilities or resources, or the taking of other steps, under section 2.

(3)     “Health provision” means provision of health services as part of the health service.

(4)“Health-related provision” means provision of services which may have an effect on the health of individuals but which are not—

(a)     health services provided as part of the health service, or

(b)     services provided in the exercise of social services functions (as defined by section 1A of the Local Authority Social Services Act 1970).

(5)     For the purposes of this section, the provision of housing is health-related provision.

(6)     In section 13N of the National Health Service Act 2006 (duty of NHS Commissioning Board to promote integration), at the end insert—

“(5)    For the purposes of this section, the provision of housing accommodation is a health-related service.”

(7)     In section 14Z1 of that Act (duty of clinical commissioning groups to promote integration), at the end insert—

“(4)    For the purposes of this section, the provision of housing accommodation is a health-related service.”

Commentary 

Providing information and advice (s.4)

(1)     A local authority must establish and maintain a service for providing people in its area with information and advice relating to care and support for adults and support for carers.

(2)     The service must provide information and advice on the following matters in particular—

(a)     the system provided for by this Part and how the system operates in the authority’s area,

(b)     the choice of types of care and support, and the choice of providers, available to those who are in the authority’s area,

(c)     how to access the care and support that is available,

(d)     how to access independent financial advice on matters relevant to the meeting of needs for care and support, and

(e)     how to raise concerns about the safety or well-being of an adult who has needs for care and support.

(3)     In providing information and advice under this section, a local authority must in particular—

(a)     have regard to the importance of identifying adults in the authority’s area who would be likely to benefit from financial advice on matters relevant to the meeting of needs for care and support, and

(b)     seek to ensure that what it provides is sufficient to enable adults—

(i)       to identify matters that are or might be relevant to their personal financial position that could be affected by the system provided for by this Part,

(ii)      to make plans for meeting needs for care and support that might arise, and

(iii)     to understand the different ways in which they may access independent financial advice on matters relevant to the meeting of needs for care and support.

(4)     Information and advice provided under this section must be accessible to, and proportionate to the needs of, those for whom it is being provided.

(5)     “Independent financial advice” means financial advice provided by a person who is independent of the local authority in question.

(6)     In cases where a local authority performs the duty under subsection (1) jointly with one or more other local authorities by establishing and maintaining a service for their combined area—

(a)     references in this section to a local authority are to be read as references to the authorities acting jointly, and

(b)     references in this section to a local authority’s area are to be read as references to the combined area.

Commentary 

Co-operating generally (s.6)

(1)     A local authority must co-operate with each of its relevant partners, and each relevant partner must co-operate with the authority, in the exercise of—

(a)     their respective functions relating to adults with needs for care and support,

(b)     their respective functions relating to carers, and

(c)     functions of theirs the exercise of which is relevant to functions referred to in paragraph (a) or (b).

(2)     A local authority must co-operate, in the exercise of its functions under this Part, with such other persons as it considers appropriate who exercise functions, or are engaged in activities, in the authority’s area relating to adults with needs for care and support or relating to carers.

(3)     The following are examples of persons with whom a local authority may consider it appropriate to co-operate for the purposes of subsection (2)—

(a)     a person who provides services to meet adults’ needs for care and support, services to meet carers’ needs for support or services, facilities or resources of the kind referred to in section 2(1);

(b)     a person who provides primary medical services, primary dental services, primary ophthalmic services, pharmaceutical services or local pharmaceutical services under the National Health Service Act 2006;

(c)     a person in whom a hospital in England is vested which is not a health service hospital as defined by that Act;

(d)     a private registered provider of social housing.

(4)     A local authority must make arrangements for ensuring co-operation between—

(a)     the officers of the authority who exercise the authority’s functions relating to adults with needs for care and support or its functions relating to carers,

(b)     the officers of the authority who exercise the authority’s functions relating to housing (in so far as the exercise of those functions is relevant to functions referred to in paragraph (a)),

(c)     the Director of Children’s Services at the authority (in so far as the exercise of functions by that officer is relevant to the functions referred to in paragraph (a)), and

(d)     the authority’s director of public health (see section 73A of the National Health Service Act 2006).

(5)     The references in subsections (1) and (4)(a) to a local authority’s functions include a reference to the authority’s functions under sections 58 to 65 (transition for children with needs etc.).

(6)     The duties under subsections (1) to (4) are to be performed for the following purposes in particular—

(a)     promoting the well-being of adults with needs for care and support and of carers in the authority’s area,

(b)     improving the quality of care and support for adults and support for carers provided in the authority’s area (including the outcomes that are achieved from such provision),

(c)     smoothing the transition to the system provided for by this Part for persons in relation to whom functions under sections 58 to 65 are exercisable,

(d)     protecting adults with needs for care and support who are experiencing, or are at risk of, abuse or neglect, and

(e)     identifying lessons to be learned from cases where adults with needs for care and support have experienced serious abuse or neglect and applying those lessons to future cases.

(7)     Each of the following is a relevant partner of a local authority—

(a)     where the authority is a county council for an area for which there are district councils, each district council;

(b)     any local authority, or district council for an area in England for which there is a county council, with which the authority agrees it would be appropriate to co-operate under this section;

(c)     each NHS body in the authority’s area;

(d)     the Minister of the Crown exercising functions in relation to social security, employment and training, so far as those functions are exercisable in relation to England;

(e)     the chief officer of police for a police area the whole or part of which is in the authority’s area;

(f)      the Minister of the Crown exercising functions in relation to prisons, so far as those functions are exercisable in relation to England;

(g)     a relevant provider of probation services in the authority’s area;

(h)     such person, or a person of such description, as regulations may specify.

(8)     The reference to an NHS body in a local authority’s area is a reference to—

(a)     the National Health Service Commissioning Board, so far as its functions are exercisable in relation to the authority’s area,

(b)     a clinical commissioning group the whole or part of whose area is in the authority’s area, or

(c)     an NHS trust or NHS foundation trust which provides services in the authority’s area.

(9)     “Prison” has the same meaning as in the Prison Act 1952 (see section 53(1) of that Act).

(10)   “Relevant provider of probation services” has the meaning given by section 325 of the Criminal Justice Act 2003.

Commentary 

Co-operating in specific cases (s.7)

(1)     Where a local authority requests the co-operation of a relevant partner, or of a local authority which is not one of its relevant partners, in the exercise of a function under this Part in the case of an individual with needs for care and support or in the case of a carer, a carer of a child or a young carer, the partner or authority must comply with the request unless it considers that doing so—

(a)     would be incompatible with its own duties, or

(b)     would otherwise have an adverse effect on the exercise of its functions.

(2)     Where a relevant partner of a local authority, or a local authority which is not one of its relevant partners, requests the co-operation of the local authority in its exercise of a function in the case of an individual with needs for care and support or in the case of a carer, a carer of a child or a young carer, the local authority must comply with the request unless it considers that doing so—

(a)     would be incompatible with its own duties, or

(b)     would otherwise have an adverse effect on the exercise of its functions.

(3)     A person who decides not to comply with a request under subsection (1) or (2) must give the person who made the request written reasons for the decision.

(4)     “Relevant partner”, in relation to a local authority, has the same meaning as in section 6.

(5)     “Carer of a child” means a person who is a carer for the purposes of section 60.Commentary

How to meet needs (s.8)

(1)     The following are examples of what may be provided to meet needs under sections 18 to 20—

(a)     accommodation in a care home or in premises of some other type;

(b)     care and support at home or in the community;

(c)     counselling and other types of social work;

(d)     goods and facilities;

(e)     information, advice and advocacy.

(2)     The following are examples of the ways in which a local authority may meet needs under sections 18 to 20—

(a)     by arranging for a person other than it to provide a service;

(b)     by itself providing a service;

(c)     by making direct payments.

(3)     “Care home” has the meaning given by section 3 of the Care Standards Act 2000.

Commentary

Assessment of an adult’s needs for care and support (s.9)

(1)     Where it appears to a local authority that an adult may have needs for care and support, the authority must assess—

(a)     whether the adult does have needs for care and support, and

(b)     if the adult does, what those needs are.

(2)     An assessment under subsection (1) is referred to in this Part as a “needs assessment”.

(3)     The duty to carry out a needs assessment applies regardless of the authority’s view of—

(a)     the level of the adult’s needs for care and support, or

(b)     the level of the adult’s financial resources.

(4)     A needs assessment must include an assessment of—

(a)     the impact of the adult’s needs for care and support on the matters specified in section 1(2),

(b)     the outcomes that the adult wishes to achieve in day-to-day life, and

(c)     whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes.

(5)     A local authority, in carrying out a needs assessment, must involve—

(a)     the adult,

(b)     any carer that the adult has, and

(c)     any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.

(6)     When carrying out a needs assessment, a local authority must also consider—

(a)     whether, and if so to what extent, matters other than the provision of care and support could contribute to the achievement of the outcomes that the adult wishes to achieve in day-to-day life, and

(b)     whether the adult would benefit from the provision of anything under section 2 or 4 or of anything which might be available in the community.

(7)     This section is subject to section 11(1) to (4) (refusal by adult of assessment).

Commentary

  1. CA 2014, s.39 places primary responsibility for the provision of its services on the authority in which P is ‘ordinarily resident’.
  2. lf P has been assessed (following a s.9 Assessment) as having eligible needs, LGC will have a duty under CA 2014, s.l8 to meet P‘s needs as long as P meets the:

2.1     ‘residence’; and

2.2     ‘charging’

conditions, (CA 2014, s.18(1)).

  1. Where a local authority is responsible for the adult, it is also responsible for the adult’s carers (CA 2014, s.20(1)).
  2. Whilst there is no statutory timescale for the completion of a s.9 assessment, it was incumbent on the local authority to inform P of an ‘indicative timescale’ (paragraph 6.29 of the Statutory Guidance).
  3. Delay in the performance of a statutory duty can amount to a breach of that duty, or a breach of the common law principle that a public authority should not act irrationally/unreasonably. Whether or not there has been a breach of duty, delay may amount to maladministration causing injustice.
  4. ‘Where there is delay in assessing, a complaint should resolve the problem quickly, as long as there is no underlying dispute about the duty to assess. lf there is, judicial review may be the most appropriate course of action if the delay is likely to cause a breach of the duty to meet eligible needs, particularly if there is a need for an injunction to secure interim provision… lf there is a real risk of the placement being lost if not secured promptly, an application for interim relief in judicial review proceedings may well le justifiable.'(Paragraph 3.62 ‘Community Care and the Law’ by Luke Clements and others, 6rH edition published by LAG 2017 (‘Clements‘)).
  5. CA2014 does not define ‘ordinary residence’.
  6. ‘lt will generally be the place where a person normally resides: where the person’s normal residential address is to be found.'(Paragraph 6.13 of Clements).
  7. The Statutory Guidance states,

‘How to determine ordinary residence

19.12          The local authority’s responsibility for meeting a person’s eligible needs under the Care Act is based on the concept of ordinary residence. However, there is no definition of ordinary residence in the Care Act. Therefore, the term should be given its ordinary and natural meaning.

19.13          ln most cases, establishing the person’s ordinary residence is a straightforward matter. However, this is not always the case. There will be circumstances in which ordinary residence is not as clear cut, for example when people spend their time in more than one area, or move between areas. Where uncertainties arlse, local authorities should always consider each case on its own merits.

19.14          The concept of ordinary residence involves questions of both fact and degree. Factors such as time, intention and continuity (each of which may be given different weight according to the context) have to be taken into account. The courts have considered the meaning of ordinary residence and the leading case is that of Shah v London Borough of Barnet [1983]. ln this case, Lord Scarman stated that:

unless … it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view that ordinarily residence 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.

19.15          Local authorities must always have regard to this case when determining the ordinary residence of adults who have capacity to make their own decisions about where they wish to live. Local authorities should in particular apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether for a short or long duration. Ordinary residence can be acquired as soon as the person moves to an area, if their move is voluntary and for settled purposes, irrespective of whether they own, or have an interest in a property in another local authority area. There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there, because it depends on the nature and quality of the connection with the new place.’

  1. ‘[The] statutory guidance makes clear that previous court judgments concerning the interpretation [of the phrase ‘ordinary residence remain relevant… The ‘determinations’ made by the secretary of state (i.e. arising out of local authority disputes) will also continue to be of relevance.'(Clements, paragraphs 6.12 and 6.32). 11. ln R v Barnett LBC ex p Shah [1983] 2 AC 309 HL, Lord Scarman held that in determining a person’s ordinary residence, ‘the person’s long term future intentions or expectations were not relevant; he felt was not what was a person’s real home, but whether a person could show a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences. A person’s attitude is only relevant in two respects; (a) the residence must be voluntarily adopted, and (b) there must be a settled purpose in living in the particular residence.’ (Clements, paragraph 6.1 4).

Where P has capacity

11. Paragraph 19.50 of the Statutory Guidance states, ‘where the person moves to accommodation in a different area of their own volition, without the local authority making the arrangements, they would be likely to acquire ordinary residence in the area of the authority where the new accommodation is situated. The deeming rule does not apply where a person has chosen to arrange their own care in a type of specified accommodation in another area, and then later asks for local authority support.’

  1. The issues the court should consider in determining whether a move is voluntary include the length of time P has been living in the area of the new local authority following her move.
  2. ln R (Mani) v Lambeth LBC [2002] EWHC 735 (admin), relying upon Lord Slynn’s analysis in Mohamed v Hammersmith & Fulham LBC [2001] UKHL 57, the court held that because the applicant had been living in the area for six months, his residence. Was sufficiently voluntary.
  3. At paragraph 18 Lord Slynn stated,

‘lt is clear that words like ordinary residence and normal residence may take their precise meaning from the context of the legislation in which they appear but it seems to me that the prima facie meaning of normal residence is a place where at the relevant time the person in fact resides. That therefore is the question to be asked and it is not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides. lf a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm that is where during that period he is normally resident, however much he might prefer some more permanent or better accommodation. ln a sense it is “shelter” but is also where he resides. Where he is given interim accommodation by a local housing authority even more clearly is that the place where for the time being he is normally resident. The fact that it is provided subject to statutory duty does not, contrary to the appellant authority’s argument, prevent it from being sutch.’

Where P lacks capacity

15. Where P lacks capacity the Statutory Guidance states,

‘19.16          For people who lack capacity to make decisions about their accommodation… , the judgment in the case of R (on the application of Cornwall Council) Secretary of State & Ors [2015] UKSC46 (Cornwall) is appropriate because a person’s lack of mental capacity may mean that they are not able to voluntarily adopt a particular place of residence.

19.26          Where a person lacks the capacity to decide where to live and uncertainties arise about their place of ordinary residence, direct application of the test in Shah will not assist since the Shah test requires the voluntary adoption of a place.

19.27          The Supreme Court judgment in Cornwall made clear that the essential criterion in the language of the statute ‘is the residence of the subject and the nature of that residence’.

19.29          At paragraph 47, the judgment refers to the attributes of the residence objectively viewed.

19.30          At paragraph 49, the judgment refers to an: assessment of the duration and quality of actual residence.

19.31          At paragraphs 47 and 52, the judgment refers to residence being ‘sufficiently settled’.

19.32          Therefore with regard to establishing the ordinary residence of adults who lack capacity, 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.

19.33          Physical presence provides a starting point for considering ordinary residence but does not necessarily equate to ordinary residence – a person could be physically present in an area but of no settled residence. This is covered in paragraphs 19.44 to 19.46 of the Care Act statutory guidance.

19.34          ln certain situations, ordinary residence could be deemed to be in a different area to that in which a person is physically present. This is covered in paragraphs 19.44 to 19.59 of the Care Act statutory guidance and in the section below on looked after children transitioning to adult social care services.

19.35          Other situations such as temporary absences and people having more than one home are covered in paragraphs 19.70 to 19.74 of the Care Act statutory guidance.

19.36          The issue of duration is covered in paragraph 19.15 of the Care Act statutory guidance.’

16. CA 2014, s.39(4) provides that an adult who is being provided with accommodation under MHA 1983 s.117 is to be treated for the purposes of the CA 2014 ‘as ordinarily resident in the area of the local authority in England… on which the duty to provide the adult with services under that section is imposed.’

Assessment of a carer’s needs for support (s.10)

(1)     Where it appears to a local authority that a carer may have needs for support (whether currently or in the future), the authority must assess—

(a)     whether the carer does have needs for support (or is likely to do so in the future), and

(b)     if the carer does, what those needs are (or are likely to be in the future).

(2)     An assessment under subsection (1) is referred to in this Part as a “carer’s assessment”.

(3)     “Carer” means an adult who provides or intends to provide care for another adult (an “adult needing care”); but see subsections (9) and (10).

(4)     The duty to carry out a carer’s assessment applies regardless of the authority’s view of—

(a)     the level of the carer’s needs for support, or

(b)     the level of the carer’s financial resources or of those of the adult needing care.

(5)     A carer’s assessment must include an assessment of—

(a)     whether the carer is able, and is likely to continue to be able, to provide care for the adult needing care,

(b)     whether the carer is willing, and is likely to continue to be willing,  to do so,

(c)     the impact of the carer’s needs for support on the matters specified in section 1(2),

(d)     the outcomes that the carer wishes to achieve in day-to-day life, and

(e)     whether, and if so to what extent, the provision of support could contribute to the achievement of those outcomes.

(6)     A local authority, in carrying out a carer’s assessment, must have regard to—

(a)     whether the carer works or wishes to do so, and

(b)     whether the carer is participating in or wishes to participate in education, training or recreation.

(7)     A local authority, in carrying out a carer’s assessment, must involve—

(a)     the carer, and

(b)     any person whom the carer asks the authority to involve.

(8)     When carrying out a carer’s assessment, a local authority must also consider—

(a)     whether, and if so to what extent, matters other than the provision of support could contribute to the achievement of the outcomes that the carer wishes to achieve in day-to-day life, and

(b)     whether the carer would benefit from the provision of anything under section 2 or 4 or of anything which might be available in the community.

(9)     An adult is not to be regarded as a carer if the adult provides or intends to provide care—

(a)     under or by virtue of a contract, or

(b)     as voluntary work.

(10)   But in a case where the local authority considers that the relationship between the adult needing care and the adult providing or intending to provide care is such that it would be appropriate for the latter to be regarded as a carer, that adult is to be regarded as such (and subsection (9) is therefore to be ignored in that case).

(11)   The references in this section to providing care include a reference to providing practical or emotional support.

(12)   This section is subject to section 11(5) to (7) (refusal by carer of assessment).

Commentary 

Assessments under sections 9 and 10: further provision (s.12)

(1)     Regulations must make further provision about carrying out a needs or carer’s assessment; the regulations may, in particular—

(a)     require the local authority, in carrying out the assessment, to have regard to the needs of the family of the adult to whom the assessment relates;

(b)     specify other matters to which the local authority must have regard in carrying out the assessment (including, in particular, the matters to which it must have regard in seeking to ensure that the assessment is carried out in an appropriate and proportionate manner);

(c)     specify steps that the local authority must take for the purpose of ensuring that the assessment is carried out in an appropriate and proportionate manner;

(d)     specify circumstances in which the assessment may or must be carried out by a person (whether or not an officer of the authority) who has expertise in a specified matter or is of such other description as is specified, jointly with or on behalf of the local authority;

(e)     specify circumstances in which the adult to whom the assessment relates may carry out the assessment jointly with the local authority;

(f)      specify circumstances in which the local authority must, before carrying out the assessment or when doing so, consult a person who has expertise in a specified matter or is of such other description as is specified;

(g)     specify circumstances in which the local authority must refer the adult concerned for an assessment of eligibility for NHS continuing healthcare.

(2)     The regulations may include provision for facilitating the carrying out of a needs or carer’s assessment in circumstances specified under subsection (1)(d) or (e); they may, for example, give the local authority power to provide the person carrying out the assessment—

(a)     in the case of a needs assessment, with information about the adult to whom the assessment relates;

(b)     in the case of a carer’s assessment, with information about the carer to whom the assessment relates and about the adult needing care;

(c)     in either case, with whatever resources, or with access to whatever facilities, the authority thinks will be required to carry out the assessment.

(3)     The local authority must give a written record of a needs assessment to—

(a)     the adult to whom the assessment relates,

(b)     any carer that the adult has, if the adult asks the authority to do so, and

(c)     any other person to whom the adult asks the authority to give a copy.

(4)     The local authority must give a written record of a carer’s assessment to—

(a)     the carer to whom the assessment relates,

(b)     the adult needing care, if the carer asks the authority to do so, and

(c)     any other person to whom the carer asks the authority to give a copy.

(5)     A local authority may combine a needs or carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to another person only if the adult to whom the needs or carer’s assessment relates agrees and—

(a)     where the combination would include an assessment relating to another adult, that other adult agrees;

(b)     where the combination would include an assessment relating to a child (including a young carer), the consent condition is met in relation to the child.

(6)     The consent condition is met in relation to a child if—

(a)     the child has capacity or is competent to agree to the assessments being combined and does so agree, or

(b)     the child lacks capacity or is not competent so to agree but the local authority is satisfied that combining the assessments would be in the child’s best interests.

(7)     Where a local authority is carrying out a needs or carer’s assessment, and there is some other assessment being or about to be carried out in relation to the adult to whom the assessment relates or in relation to a relevant person, the local authority may carry out that other assessment—

(a)     on behalf of or jointly with the body responsible for carrying it out, or

(b)     if that body has arranged to carry out the other assessment jointly with another person, jointly with that body and the other person.

(8)     A reference to a needs or carer’s assessment includes a reference to a needs or carer’s assessment (as the case may be) which forms part of a combined assessment under subsection (5).

(9)     A reference to an assessment includes a reference to part of an assessment.

(10)   “NHS continuing health care” is to be construed in accordance with standing rules under section 6E of the National Health Service Act 2006.

(11)   A person is a “relevant person”, in relation to a needs or carer’s assessment, if it would be reasonable to combine an assessment relating to that person with the needs or carer’s assessment (as mentioned in subsection (5)).

Commentary

The eligibility criteria (s.13)

(1)     Where a local authority is satisfied on the basis of a needs or carer’s assessment that an adult has needs for care and support or that a carer has needs for support, it must determine whether any of the needs meet the eligibility criteria (see subsection (7)).

(2)     Having made a determination under subsection (1), the local authority must give the adult concerned a written record of the determination and the reasons for it.

(3)     Where at least some of an adult’s needs for care and support meet the eligibility criteria, the local authority must—

(a)     consider what could be done to meet those needs that do,

(b)     ascertain whether the adult wants to have those needs met by the local authority in accordance with this Part, and

(c)     establish whether the adult is ordinarily resident in the local authority’s area.

(4)     Where at least some of a carer’s needs for support meet the eligibility criteria, the local authority must—

(a)     consider what could be done to meet those needs that do, and

(b)     establish whether the adult needing care is ordinarily resident in the local authority’s area.

(5)     Where none of the needs of the adult concerned meet the eligibility criteria, the local authority must give him or her written advice and information about—

(a)     what can be done to meet or reduce the needs;

(b)     what can be done to prevent or delay the development of needs for care and support, or the development of needs for support, in the future.

(6)     Regulations may make provision about the making of the determination under subsection (1).

(7)     Needs meet the eligibility criteria if—

(a)     they are of a description specified in regulations, or

(b)     they form part of a combination of needs of a description so specified.

(8)     The regulations may, in particular, describe needs by reference to—

(a)     the effect that the needs have on the adult concerned;

(b)     the adult’s circumstances.

Commentary 

Power of local authority to charge (s.14)

(1)     A local authority—

(a)     may make a charge for meeting needs under sections 18 to 20, and

(b)     where it is meeting needs because Condition 2 in section 18 or Condition 2 or 4 in section 20 is met, may make a charge (in addition to the charge it makes under paragraph (a)) for putting in place the arrangements for meeting those needs.

(2)     The power to make a charge under subsection (1) for meeting needs under section 18 is subject to section 15.

(3)     The power to make a charge under subsection (1) for meeting a carer’s needs for support under section 20 by providing care and support to the adult needing care may not be exercised so as to charge the carer.

(4)     A charge under subsection (1)(a) may cover only the cost that the local authority incurs in meeting the needs to which the charge applies.

(5)     Regulations may make provision about the exercise of the power to make a charge under subsection (1).

(6)     Regulations may prohibit a local authority from making a charge under subsection (1); and the regulations may prohibit a local authority from doing so where, for example, the care and support or the support—

(a)     is of a specified type;

(b)     is provided in specified circumstances;

(c)     is provided to an adult of a specified description;

(d)     is provided for a specified period only.

(7)     A local authority may not make a charge under subsection (1) if the income of the adult concerned would, after deduction of the amount of the charge, fall below such amount as is specified in regulations; and the regulations may in particular (in reliance on section 125(7)) specify—

(a)     different amounts for different descriptions of care and support;

(b)     different amounts for different descriptions of support.

(8)     Regulations under subsection (7) may make provision as to cases or circumstances in which an adult is to be treated as having income that would, or as having income that would not, fall below the amount specified in the regulations if a charge were to be made.

Commentary

Assessment of financial resources (s.17)

(1)     Where a local authority, having made a determination under section 13(1), thinks that, if it were to meet an adult’s needs for care and support, it would charge the adult under section 14(1) for meeting at least some of the needs, it must assess—

(a)     the level of the adult’s financial resources, and

(b)     the amount (if any) which the adult would be likely to be able to pay towards the cost of meeting the needs for care and support.

(2)     Where a local authority thinks that, in meeting an adult’s needs for care and support, it would make a charge under section 15(7), it must assess—

(a)     the level of the adult’s financial resources, and

(b)     the amount (if any) which the adult would be likely to be able to pay towards the amount attributable to the adult’s daily living costs.

(3)     Where a local authority, having made a determination under section 13(1), thinks that, if it were to meet a carer’s needs for support, it would charge the carer under section 14(1) for meeting at least some of the needs, it must assess—

(a)     the level of the carer’s financial resources, and

(b)     the amount (if any) which the carer would be likely to be able to pay towards the cost of meeting the needs for support.

(4)     Where a local authority, having made a determination under section 13(1), thinks that, if it were to meet a carer’s needs for support, it would charge the adult needing care under section 14(1) for meeting at least some of the needs, it must assess—

(a)     the level of the financial resources of the adult needing care, and

(b)     the amount (if any) which the adult needing care would be likely to be able to pay towards the cost of meeting the carer’s needs for support.

(5)     An assessment under this section is referred to in this Part as a “financial assessment”.

(6)     A local authority, having carried out a financial assessment, must give a written record of the assessment to the adult to whom it relates.

(7)     Regulations must make provision about the carrying out of a financial assessment.

(8)     The regulations must make provision as to cases or circumstances in which, if the financial resources of an adult who has needs for care and support (whether in terms of income, capital or a combination of both) exceed a specified level, a local authority is not permitted to, or may (but need not)—

(a)     in a case where the adult’s accrued costs do not exceed the cap on care costs, pay towards the cost of the provision of care and support for the adult;

(b)     in a case where the adult’s accrued costs exceed the cap on care costs, pay towards the amount attributable to the adult’s daily living costs.

(9)     The regulations must make provision as to cases or circumstances in which, if the financial resources of a carer who has needs for support or of the adult needing care (whether in terms of income, capital or a combination of both) exceed a specified level, a local authority is not permitted to, or may (but need not), pay towards the cost of the provision of support for the carer.

(10)   The level specified for the purposes of subsections (8) and (9) is referred to in this Part as “the financial limit”; and the regulations may in particular (in reliance on section 125(7)) specify—

(a)     different levels for different descriptions of care and support;

(b)     different levels for different descriptions of support.

(11)   The regulations must make provision for—

(a)     calculating income;

(b)     calculating capital.

(12)   The regulations may make provision—

(a)     for treating, or not treating, amounts of a specified type as income or as capital;

(b)     as to cases or circumstances in which an adult is to be treated as having, or as not having, financial resources above the financial limit.

(13)   The regulations may make provision as to cases or circumstances in which a local authority is to be treated as—

(a)     having carried out a financial assessment in an adult’s case, and

(b)     being satisfied on that basis that the adult’s financial resources exceed, or that they do not exceed, the financial limit.

Commentary

Duty to meet needs for care and support (s.18)

(1)     A local authority, having made a determination under section 13(1), must meet the adult’s needs for care and support which meet the eligibility criteria if—

(a)     the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence,

(b)     the adult’s accrued costs do not exceed the cap on care costs, and

(c)     there is no charge under section 14 for meeting the needs or, in so far as there is, condition 1, 2 or 3 is met.

(2)     Condition 1 is met if the local authority is satisfied on the basis of the financial assessment it carried out that the adult’s financial resources are at or below the financial limit.

(3)     Condition 2 is met if—

(a)     the local authority is satisfied on the basis of the financial assessment it carried out that the adult’s financial resources are above the financial limit, but

(b)     the adult nonetheless asks the authority to meet the adult’s needs.

(4)     Condition 3 is met if—

(a)     the adult lacks capacity to arrange for the provision of care and support, but

(b)     there is no person authorised to do so under the Mental Capacity Act 2005 or otherwise in a position to do so on the adult’s behalf.

(5)     A local authority, having made a determination under section 13(1), must meet the adult’s needs for care and support which meet the eligibility criteria if—

(a)     the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence, and

(b)     the adult’s accrued costs exceed the cap on care costs.

(6)     The reference in subsection (1) to there being no charge under section 14 for meeting an adult’s needs for care and support is a reference to there being no such charge because—

(a)     the authority is prohibited by regulations under section 14 from making such a charge, or

(b)     the authority is entitled to make such a charge but decides not to do so.

(7)     The duties under subsections (1) and (5) do not apply to such of the adult’s needs as are being met by a carer.

Commentary

Power to meet needs for care and support (s.19)

(1)     A local authority, having carried out a needs assessment and (if required to do so) a financial assessment, may meet an adult’s needs for care and support if—

(a)     the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence, and

(b)     the authority is satisfied that it is not required to meet the adult’s needs under section 18.

(2)     A local authority, having made a determination under section 13(1), may meet an adult’s needs for care and support which meet the eligibility criteria if—

(a)     the adult is ordinarily resident in the area of another local authority,

(b)     there is no charge under section 14 for meeting the needs or, in so far as there is such a charge, condition 1, 2 or 3 in section 18 is met, and

(c)     the authority has notified the other local authority of its intention to meet the needs.

(3)     A local authority may meet an adult’s needs for care and support which appear to it to be urgent (regardless of whether the adult is ordinarily resident in its area) without having yet—

(a)     carried out a needs assessment or a financial assessment, or

(b)     made a determination under section 13(1).

(4)     A local authority may meet an adult’s needs under subsection (3) where, for example, the adult is terminally ill (within the meaning given in section 82(4) of the Welfare Reform Act 2012).

(5)     The reference in subsection (2) to there being no charge under section 14 for meeting an adult’s needs is to be construed in accordance with section 18(6).

Commentary

Duty and power to meet a carer’s needs for support (s.20)

(1)     A local authority, having made a determination under section 13(1), must meet a carer’s needs for support which meet the eligibility criteria if—

(a)     the adult needing care is ordinarily resident in the local authority’s area or is present in its area but of no settled residence,

(b)     in so far as meeting the carer’s needs involves the provision of support to the carer, there is no charge under section 14 for meeting the needs or, in so far as there is, condition 1 or 2 is met, and

(c)     in so far as meeting the carer’s needs involves the provision of care and support to the adult needing care—

(i)       there is no charge under section 14 for meeting the needs and the adult needing care agrees to the needs being met in that way, or

(ii)      in so far as there is such a charge, condition 3 or 4 is met.

(2)     Condition 1 is met if the local authority is satisfied on the basis of the financial assessment it carried out that the carer’s financial resources are at or below the financial limit.

(3)     Condition 2 is met if—

(a)     the local authority is satisfied on the basis of the financial assessment it carried out that the carer’s financial resources are above the financial limit, but

(b)     the carer nonetheless asks the authority to meet the needs in question.

(4)     Condition 3 is met if—

(a)     the local authority is satisfied on the basis of the financial assessment it carried out that the financial resources of the adult needing care are at or below the financial limit, and

(b)     the adult needing care agrees to the authority meeting the needs in question by providing care and support to him or her.

(5)     Condition 4 is met if—

(a)     the local authority is satisfied on the basis of the financial assessment it carried out that the financial resources of the adult needing care are above the financial limit, but

(b)     the adult needing care nonetheless asks the authority to meet the needs in question by providing care and support to him or her.

(6)     A local authority may meet a carer’s needs for support if it is satisfied that it is not required to meet the carer’s needs under this section; but, in so far as meeting the carer’s needs involves the provision of care and support to the adult needing care, it may do so only if the adult needing care agrees to the needs being met in that way.

(7)     A local authority may meet some or all of a carer’s needs for support in a way which involves the provision of care and support to the adult needing care, even if the authority would not be required to meet the adult’s needs for care and support under section 18.

(8)     Where a local authority is required by this section to meet some or all of a carer’s needs for support but it does not prove feasible for it to do so by providing care and support to the adult needing care, it must, so far as it is feasible to do so, identify some other way in which to do so.

(9)     The reference in subsection (1)(b) to there being no charge under section 14 for meeting a carer’s needs for support is a reference to there being no such charge because—

(a)     the authority is prohibited by regulations under section 14 from making such a charge, or

(b)     the authority is entitled to make such a charge but decides not to do so.

(10)   The reference in subsection (1)(c) to there being no charge under section 14 for meeting an adult’s needs for care and support is to be construed in accordance with section 18(6).

Commentary

Exception for provision of health services (s.22)

(1)     A local authority may not meet needs under sections 18 to 20 by providing or arranging for the provision of a service or facility that is required to be provided under the National Health Service Act 2006 unless—

(a)     doing so would be merely incidental or ancillary to doing something else to meet needs under those sections, and

(b)     the service or facility in question would be of a nature that the local authority could be expected to provide.

(2)     Regulations may specify—

(a)     types of services or facilities which, despite subsection (1), may be provided or the provision of which may be arranged by a local authority, or circumstances in which such services or facilities may be so provided or the provision of which may be so arranged;

(b)     types of services or facilities which may not be provided or the provision of which may not be arranged by a local authority, or circumstances in which such services or facilities may not be so provided or the provision of which may not be so arranged;

(c)     services or facilities, or a method for determining services or facilities, the provision of which is, or is not, to be treated as meeting the conditions in subsection (1)(a) and (b).

(3)     A local authority may not meet needs under sections 18 to 20 by providing or arranging for the provision of nursing care by a registered nurse.

(4)     But a local authority may, despite the prohibitions in subsections (1) and (3), arrange for the provision of accommodation together with the provision of nursing care by a registered nurse if—

(a)     the authority has obtained consent for it to arrange for the provision of the nursing care from whichever clinical commissioning group regulations require, or

(b)     the case is urgent and the arrangements for accommodation are only temporary.

(5)     In a case to which subsection (4)(b) applies, as soon as is feasible after the temporary arrangements are made, the local authority must seek to obtain the consent mentioned in subsection (4)(a).

(6)     Regulations may require a local authority—

(a)     to be involved in the specified manner in processes for assessing a person’s needs for health care and for deciding how those needs should be met;

(b)     to make arrangements for determining disputes between the authority and a clinical commissioning group or the National Health Service Commissioning Board about whether or not a service or facility is required to be provided under the National Health Service Act 2006.

(7)     Nothing in this section affects what a local authority may do under the National Health Service Act 2006, including entering into arrangements under regulations under section 75 of that Act (arrangements with NHS bodies).

(8)     A reference to the provision of nursing care by a registered nurse is a reference to the provision by a registered nurse of a service involving—

(a)     the provision of care, or

(b)     the planning, supervision or delegation of the provision of care,

other than a service which, having regard to its nature and the circumstances in which it is provided, does not need to be provided by a registered nurse.

(9)     Where, in a case within subsection (4), the National Health Service Commissioning Board has responsibility for arranging for the provision of the nursing care, the reference in paragraph (a) of that subsection to a clinical commissioning group is to be read as a reference to the Board.

(10)   For the purposes of its application in relation to the duty in section 2(1) (preventing needs for care and support), this section is to be read as if references to meeting needs under sections 18 to 20 were references to performing the duty under section 2(1).

Commentary

Exception for provision of housing etc (s.23)

(1)     A local authority may not meet needs under sections 18 to 20 by doing anything which it or another local authority is required to do under—

(a)     the Housing Act 1996, or

(b)     any other enactment specified in regulations.

(2)     “Another local authority” includes a district council for an area in England for which there is also a county council.

(3)     For the purposes of its application in relation to the duty in section 2(1) (preventing needs for care and support), this section is to be read as if, in subsection (1), for “meet needs under sections 18 to 20” there were substituted “ perform the duty under section 2(1) ”.

Commentary

The steps for the local authority to take (s.24)

(1)     Where a local authority is required to meet needs under section 18 or 20(1), or decides to do so under section 19(1) or (2) or 20(6), it must—

(a)     prepare a care and support plan or a support plan for the adult concerned,

(b)     tell the adult which (if any) of the needs that it is going to meet may be met by direct payments, and

(c)     help the adult with deciding how to have the needs met.

(2)     Where a local authority has carried out a needs or carer’s assessment but is not required to meet needs under section 18 or 20(1), and does not decide to do so under section 19(1) or (2) or 20(6), it must give the adult concerned—

(a)     its written reasons for not meeting the needs, and

(b)     (unless it has already done so under section 13(5)) advice and information about—

(i)       what can be done to meet or reduce the needs;

(ii)      what can be done to prevent or delay the development by the adult concerned of needs for care and support or of needs for support in the future.

(3)     Where a local authority is not going to meet an adult’s needs for care and support, it must nonetheless prepare an independent personal budget for the adult (see section 28) if—

(a)     the needs meet the eligibility criteria,

(b)     at least some of the needs are not being met by a carer, and

(c)     the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence.

Commentary

Care and support plan, support plan (s.25)

(1)     A care and support plan or, in the case of a carer, a support plan is a document prepared by a local authority which—

(a)     specifies the needs identified by the needs assessment or carer’s assessment,

(b)     specifies whether, and if so to what extent, the needs meet the eligibility criteria,

(c)     specifies the needs that the local authority is going to meet and how it is going to meet them,

(d)     specifies to which of the matters referred to in section 9(4) the provision of care and support could be relevant or to which of the matters referred to in section 10(5) and (6) the provision of support could be relevant,

(e)     includes the personal budget for the adult concerned (see section 26), and

(f)      includes advice and information about—

(i)       what can be done to meet or reduce the needs in question;

(ii)      what can be done to prevent or delay the development of needs for care and support or of needs for support in the future.

(2)     Where some or all of the needs are to be met by making direct payments, the plan must also specify—

(a)     the needs which are to be so met, and

(b)     the amount and frequency of the direct payments.

(3)     In preparing a care and support plan, the local authority must involve—

(a)     the adult for whom it is being prepared,

(b)     any carer that the adult has, and

(c)     any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.

(4)     In preparing a support plan, the local authority must involve—

(a)     the carer for whom it is being prepared,

(b)     the adult needing care, if the carer asks the authority to do so, and

(c)     any other person whom the carer asks the authority to involve.

(5)     In performing the duty under subsection (3)(a) or (4)(a), the local authority must take all reasonable steps to reach agreement with the adult or carer for whom the plan is being prepared about how the authority should meet the needs in question.

(6)     In seeking to ensure that the plan is proportionate to the needs to be met, the local authority must have regard in particular—

(a)     in the case of a care and support plan, to the matters referred to in section 9(4);

(b)     in the case of a support plan, to the matters referred to in section 10(5) and (6).

(7)     The local authority may authorise a person (including the person for whom the plan is to be prepared) to prepare the plan jointly with the authority.

(8)     The local authority may do things to facilitate the preparation of the plan in a case within subsection (7); it may, for example, provide a person authorised under that subsection with—

(a)     in the case of a care and support plan, information about the adult for whom the plan is being prepared;

(b)     in the case of a support plan, information about the carer and the adult needing care;

(c)     in either case, whatever resources, or access to whatever facilities, the authority thinks are required to prepare the plan.

(9)     The local authority must give a copy of a care and support plan to—

(a)     the adult for whom it has been prepared,

(b)     any carer that the adult has, if the adult asks the authority to do so, and

(c)     any other person to whom the adult asks the authority to give a copy.

(10)   The local authority must give a copy of a support plan to—

(a)     the carer for whom it has been prepared,

(b)     the adult needing care, if the carer asks the authority to do so, and

(c)     any other person to whom the carer asks the authority to give a copy.

(11)   A local authority may combine a care and support plan or a support plan with a plan (whether or not prepared by it and whether or not under this Part) relating to another person only if the adult for whom the care and support plan or the support plan is being prepared agrees and—

(a)     where the combination would include a plan prepared for another adult, that other adult agrees;

(b)     where the combination would include a plan prepared for a child (including a young carer), the consent condition is met in relation to the child.

(12)   The consent condition is met in relation to a child if—

(a)     the child has capacity or is competent to agree to the plans being combined and does so agree, or

(b)     the child lacks capacity or is not competent so to agree but the local authority is satisfied that the combining the plans would be in the child’s best interests.

(13)   Regulations may specify cases or circumstances in which such of paragraphs (a) to (f) of subsection (1) and paragraphs (a) and (b) of subsection (2) as are specified do not apply.

(14)   The regulations may in particular specify that the paragraphs in question do not apply as regards specified needs or matters.

Commentary

Personal budget (s.26)

(1)     A personal budget for an adult is a statement which specifies—

(a)     the cost to the local authority of meeting those of the adult’s needs which it is required or decides to meet as mentioned in section 24(1),

(b)     the amount which, on the basis of the financial assessment, the adult must pay towards that cost, and

(c)     if on that basis the local authority must itself pay towards that cost, the amount which it must pay.

(2)     In the case of an adult with needs for care and support which the local authority is required to meet under section 18, the personal budget must also specify—

(a)     the cost to the local authority of meeting the adult’s needs under that section, and

(b)     where that cost includes daily living costs—

(i)       the amount attributable to those daily living costs, and

(ii)      the balance of the cost referred to in paragraph (a).

(3)     A personal budget for an adult may also specify other amounts of public money that are available in the adult’s case including, for example, amounts available for spending on matters relating to housing, health care or welfare.

(4)     Regulations may make provision for excluding costs to a local authority from a personal budget if the costs are incurred in meeting needs for which the authority—

(a)     does not make a charge, or

(b)     is not permitted to make a charge.

Commentary

Review of care and support plan or of support plan (s.27)

(1)     A local authority must—

(a)     keep under review generally care and support plans, and support plans, that it has prepared, and

(b)     on a reasonable request by or on behalf of the adult to whom a care and support plan relates or the carer to whom a support plan relates, review the plan.

(2)     A local authority may revise a care and support plan; and in deciding whether or how to do so, it—

(a)     must have regard in particular to the matters referred to in section 9(4) (and specified in the plan under section 25(1)(d)), and

(b)     must involve—

(i)       the adult to whom the plan relates,

(ii)      any carer that the adult has, and

(iii)     any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.

(3)     A local authority may revise a support plan; and in deciding whether or how to do so, it—

(a)     must have regard in particular to the matters referred to in section 10(5) and (6) (and specified in the plan under section 25(1)(d)), and

(b)     must involve—

(i)       the carer to whom the plan relates,

(ii)      the adult needing care, if the carer asks the authority to do so, and

(iii)     any other person whom the carer asks the authority to involve.

(4)     Where a local authority is satisfied that circumstances have changed in a way that affects a care and support plan or a support plan, the authority must—

(a)     to the extent it thinks appropriate, carry out a needs or carer’s assessment, carry out a financial assessment and make a determination under section 13(1), and

(b)     revise the care and support plan or support plan accordingly.

(5)     Where, in a case within subsection (4), the local authority is proposing to change how it meets the needs in question, it must, in performing the duty under subsection (2)(b)(i) or (3)(b)(i), take all reasonable steps to reach agreement with the adult concerned about how it should meet those needs.

Commentary

Independent personal budget (s.28)

(1)     An independent personal budget is a statement which specifies what the cost would be to the local authority concerned (see section 24(3)) of meeting the adult’s eligible needs for care and support.

(2)     Where the amount referred to in subsection (1) includes daily living costs, the independent personal budget for the adult must specify—

(a)     the amount attributable to those daily living costs, and

(b)     the balance of the amount referred to in subsection (1).

(3)     An adult’s needs are “eligible needs” if, at the time they were met—

(a)     they met the eligibility criteria,

(b)     they were not being met by a carer, and

(c)     the adult was ordinarily resident or present in the area of the local authority.

(4)     A local authority must—

(a)     keep under review generally independent personal budgets that it has prepared, and

(b)     on a reasonable request by or on behalf of the adult to whom an independent personal budget relates, review the independent personal budget.

(5)     A local authority may revise an independent personal budget; and in deciding whether or how to do so, it must, in so far as it is feasible to do so, involve—

(a)     the adult to whom the independent personal budget relates,

(b)     any carer that the adult has, and

(c)     any other person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.

(6)     Where a local authority is satisfied that the circumstances of the adult to whom an independent personal budget applies have changed in a way that affects the independent personal budget, the authority must—

(a)     to the extent it thinks appropriate, carry out a needs assessment and make a determination under section 13(1), and

(b)     revise the independent personal budget accordingly.

(7)     Where, in a case within subsection (6), an adult refuses a needs assessment and the local authority thinks that the adult’s refusal is unreasonable, it need no longer keep an up-to-date care account in the adult’s case.

(8)     Having reviewed an independent personal budget, a local authority must—

(a)     if it revises the independent personal budget, notify the adult to whom the independent personal budget relates of the revisions and provide an explanation of the effect of each revision, or

(b)     if it does not revise the independent personal budget, notify the adult accordingly.

Commentary

Care account (s.29)

(1)     Where an adult has needs for care and support which meet the eligibility criteria, the local authority in whose area the adult is ordinarily resident or, if the adult is of no settled residence, in whose area the adult is present—

(a)     must keep an up-to-date record of the adult’s accrued costs (a “care account”), and

(b)     once those costs exceed the cap on care costs, must inform the adult.

(2)     Where a local authority which has been keeping a care account is no longer required to do so, it must nonetheless retain the account that it has kept so far until—

(a)     the end of the period of 99 years beginning with the day on which it last updated the account, or

(b)     where the adult dies, the local authority becomes aware of the death.

(3)     A care account must specify such amount as is attributable to the adult’s daily living costs.

(4)     A local authority which is keeping a care account must, at such times as regulations may specify, provide the adult concerned with a statement which—

(a)     sets out the adult’s accrued costs, and

(b)     includes such other matters as regulations may specify.

(5)     Regulations may specify circumstances in which the duty under subsection (4) does not apply.

Commentary

Cases where adult expresses preference for particular accommodation (s.30)

(1)     Regulations may provide that where—

(a)     a local authority is going to meet needs under sections 18 to 20 by providing or arranging for the provision of accommodation of a specified type,

(b)     the adult for whom the accommodation is going to be provided expresses a preference for particular accommodation of that type, and

(c)     specified conditions are met,

the local authority must provide or arrange for the provision of the preferred accommodation.

(2)     The regulations may provide for the adult or a person of a specified description to pay for some or all of the additional cost in specified cases or circumstances.

(3)     “Additional cost” means the cost of providing or arranging for the provision of the preferred accommodation less that part of the amount specified in the personal budget for the purposes of section 26(1)(a) that relates to the provision of accommodation of that type.

Commentary

Adults with capacity to request direct payments (s.31)

(1)     This section applies where—

(a)     a personal budget for an adult specifies an amount which the local authority must pay towards the cost of meeting the needs to which the personal budget relates, and

(b)     the adult requests the local authority to meet some or all of those needs by making payments to the adult or a person nominated by the adult.

(2)     If conditions 1 to 4 are met, the local authority must, subject to regulations under section 33, make the payments to which the request relates to the adult or nominated person.

(3)     A payment under this section is referred to in this Part as a “direct payment”.

(4)     Condition 1 is that—

(a)     the adult has capacity to make the request, and

(b)     where there is a nominated person, that person agrees to receive the payments.

(5)     Condition 2 is that—

(a)     the local authority is not prohibited by regulations under section 33 from meeting the adult’s needs by making direct payments to the adult or nominated person, and

(b)     if regulations under that section give the local authority discretion to decide not to meet the adult’s needs by making direct payments to the adult or nominated person, it does not exercise that discretion.

(6)     Condition 3 is that the local authority is satisfied that the adult or nominated person is capable of managing direct payments—

(a)     by himself or herself, or

(b)     with whatever help the authority thinks the adult or nominated person will be able to access.

(7)     Condition 4 is that the local authority is satisfied that making direct payments to the adult or nominated person is an appropriate way to meet the needs in question.

Commentary

Adults without capacity to request direct payments (s.32)

(1)     This section applies where—

(a)     a personal budget for an adult specifies an amount which the local authority must pay towards the cost of meeting the needs to which the personal budget relates, and

(b)     the adult lacks capacity to request the local authority to meet any of those needs by making payments to the adult, but

(c)     an authorised person requests the local authority to meet some or all of those needs by making payments to the authorised person.

(2)     If conditions 1 to 5 are met, the local authority must, subject to regulations under section 33, make the payments to which the request relates to the authorised person.

(3)     A payment under this section is referred to in this Part as a “direct payment”.

(4)     A person is authorised for the purposes of this section if—

(a)     the person is authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support,

(b)     where the person is not authorised as mentioned in paragraph (a), a person who is so authorised agrees with the local authority that the person is a suitable person to whom to make direct payments, or

(c)     where the person is not authorised as mentioned in paragraph (a) and there is no person who is so authorised, the local authority considers that the person is a suitable person to whom to make direct payments.

(5)     Condition 1 is that, where the authorised person is not authorised as mentioned in subsection (4)(a) but there is at least one person who is so authorised, a person who is so authorised supports the authorised person’s request.

(6)     Condition 2 is that—

(a)     the local authority is not prohibited by regulations under section 33 from meeting the adult’s needs by making direct payments to the authorised person, and

(b)     if regulations under that section give the local authority discretion to decide not to meet the adult’s needs by making direct payments to the authorised person, it does not exercise that discretion.

(7)     Condition 3 is that the local authority is satisfied that the authorised person will act in the adult’s best interests in arranging for the provision of the care and support for which the direct payments under this section would be used.

(8)     Condition 4 is that the local authority is satisfied that the authorised person is capable of managing direct payments—

(a)     by himself or herself, or

(b)     with whatever help the authority thinks the authorised person will be able to access.

(9)     Condition 5 is that the local authority is satisfied that making direct payments to the authorised person is an appropriate way to meet the needs in question.

Commentary

Direct payments: further provision (s.33)

(1)     This section applies where—

(a)     a personal budget for an adult specifies an amount which the local authority must pay towards the cost of meeting the needs to which the personal budget relates, and

(b)     the adult lacks capacity to request the local authority to meet any of those needs by making payments to the adult, but

(c)     an authorised person requests the local authority to meet some or all of those needs by making payments to the authorised person.

(2)     If conditions 1 to 5 are met, the local authority must, subject to regulations under section 33, make the payments to which the request relates to the authorised person.

(3)     A payment under this section is referred to in this Part as a “direct payment”.

(4)     A person is authorised for the purposes of this section if—

(a)     the person is authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support,

(b)     where the person is not authorised as mentioned in paragraph (a), a person who is so authorised agrees with the local authority that the person is a suitable person to whom to make direct payments, or

(c)     where the person is not authorised as mentioned in paragraph (a) and there is no person who is so authorised, the local authority considers that the person is a suitable person to whom to make direct payments.

(5)     Condition 1 is that, where the authorised person is not authorised as mentioned in subsection (4)(a) but there is at least one person who is so authorised, a person who is so authorised supports the authorised person’s request.

(6)     Condition 2 is that—

(a)     the local authority is not prohibited by regulations under section 33 from meeting the adult’s needs by making direct payments to the authorised person, and

(b)     if regulations under that section give the local authority discretion to decide not to meet the adult’s needs by making direct payments to the authorised person, it does not exercise that discretion.

(7)     Condition 3 is that the local authority is satisfied that the authorised person will act in the adult’s best interests in arranging for the provision of the care and support for which the direct payments under this section would be used.

(8)     Condition 4 is that the local authority is satisfied that the authorised person is capable of managing direct payments—

(a)     by himself or herself, or

(b)     with whatever help the authority thinks the authorised person will be able to access.

(9)     Condition 5 is that the local authority is satisfied that making direct payments to the authorised person is an appropriate way to meet the needs in question.

Commentary

Notification, assessment, etc. (s.37)

(1)     This section applies where—

(a)     an adult’s needs for care and support are being met by a local authority (“the first authority”) under section 18 or 19,

(b)     the adult notifies another local authority (“the second authority”) (or that authority is notified on the adult’s behalf) that the adult intends to move to the area of the second authority, and

(c)     the second authority is satisfied that the adult’s intention is genuine.

(2)     This section also applies where—

(a)     an adult is not having needs for care and support met under either of those sections but a local authority (“the first authority”) is nonetheless keeping a care account in the adult’s case,

(b)     the adult notifies another local authority (“the second authority”) (or that authority is notified on the adult’s behalf) that the adult intends to move to the area of the second authority, and

(c)     the second authority is satisfied that the adult’s intention is genuine.

(3)     This section also applies where—

(a)     an adult’s needs for care and support are being met by a local authority (“the first authority”) under section 18 or 19 by the first authority arranging for the provision of accommodation in the area of another local authority (“the second authority”),

(b)     the adult notifies the second authority (or that authority is notified on the adult’s behalf) that the adult intends to move out of that accommodation but to remain, and be provided with care and support at home or in the community, in its area, and

(c)     the second authority is satisfied that the adult’s intention is genuine.

(4)     The second authority must—

(a)     provide the adult and, if the adult has or is proposing to have a carer, the carer with such information as it considers appropriate (in so far as it would not do so under section 4), and

(b)     notify the first authority that it is satisfied as mentioned in subsection (1)(c), (2)(c) or (3)(c).

(5)     The first authority, having received the notification under subsection (4)(b), must provide the second authority with—

(a)     a copy of any care and support plan prepared for the adult,

(b)     a copy of any independent personal budget prepared for the adult,

(c)     in a case within subsection (2), a copy of the most recent needs assessment in the adult’s case,

(d)     if the first authority has been keeping a care account in the adult’s case, a copy of that account,

(e)     if the adult has a carer and that carer is to continue as the adult’s carer after the move, a copy of any support plan prepared for the carer, and

(f)      such other information relating to the adult and, if the adult has a carer (whether or not one with needs for support), such other information relating to the carer as the second authority may request.

(6)     The second authority must—

(a)     assess whether the adult has needs for care and support and, if the adult does, what those needs are, and

(b)     where the adult has or is proposing to have a carer and it is appropriate to do so, assess whether the carer has or is likely to have needs for support and, if the carer does or is likely to, what those needs are or are likely to be.

(7)     In carrying out an assessment under subsection (6)(a) or (b), the second authority must have regard to the care and support plan provided under subsection (5)(a) or (as the case may be) the support plan provided under subsection (5)(e).

(8)     This Part—

(a)     applies to an assessment under subsection (6)(a) as it applies to a needs assessment, and

(b)     applies to an assessment under subsection (6)(b) as it applies to a carer’s assessment.

(9)     Pending the adult’s move, the first authority must keep in contact with the second authority in order to ascertain the progress that the second authority is making in preparing to meet—

(a)     any needs for care and support under section 18 or 19 in the adult’s case, and

(b)     where the adult is proposing to have a carer immediately after the move, any needs for support under section 20 in the carer’s case.

(10)   The first authority must keep the adult (and, where applicable, the carer) informed about its contact under subsection (9) with the second authority and must involve the adult (and, where applicable, the carer) in the contact.

(11)   Where the needs identified by an assessment under subsection (6)(a) carried out by the second authority are different from those specified in the care and support plan provided under subsection (5)(a), the second authority must provide a written explanation of the difference to—

(a)     the adult,

(b)     any carer that the adult has, if the adult asks the authority to do so, and

(c)     any other person to whom the adult asks the authority to provide the explanation.

(12)   Where the cost to the second authority of meeting the adult’s eligible needs is different from the cost to the first authority of doing so, the second authority must provide a written explanation of the difference to—

(a)     the adult,

(b)     any carer that the adult has, if the adult asks the authority to do so, and

(c)     any other person to whom the adult asks the authority to provide the explanation.

(13)   Where the needs identified by an assessment under subsection (6)(b) carried out by the second authority are different from those in the support plan provided under subsection (5)(e), the second authority must provide a written explanation of the difference to—

(a)     the carer,

(b)     the adult needing care, if the carer asks the authority to do so, and

(c)     any other person to whom the carer asks the authority to provide an explanation.

(14)   Regulations may specify steps which a local authority must take for the purpose of being satisfied as mentioned in subsection (1)(c), (2)(c) or (3)(c).

(15)   In this section—

(a)     an adult’s needs are “eligible needs” if they meet the eligibility criteria and are not being met by a carer,

(b)     a reference to moving to an area is a reference to moving to that area with a view to becoming ordinarily resident there, and

(c)     a reference to remaining in an area is a reference to remaining ordinarily resident there.

Commentary

Continuity of care

Chapter 20 of the Statutory Guidance ‘fails to address what should happened when a person moves and the second local authority fails to act properly – for example, by failing to meet the person’s needs identified by the first authority until it has completed its assessment. It is certainly not the case that the first authority can simply wash its hands. The first authority would have the power to meet the adult’s needs under CA 2014 s.19. This confers two relevant powers to meet needs. The first under s.19(2) arises where (1) a local authority has assessed an individual as having eligible needs; (2) the person is ordinarily resident in the area of another local authority; and (3) it has notified that authority of its intention to do so. The second is under section 19(3) and arises where the need appears to be urgent, irrespective of whether an assessment has been carried out and irrespective of where the person is ordinarily resident. Both discretions must be organised in accordance with general public law principles, including the requirement to make a rational decision on the basis of the adult’s circumstances without the application of a blanket policy. Furthermore the power would become a duty if a failure to act would breach the requirements of the Human Rights Act 1998 because, for example, the person concerned was left in such conditions that it amounted to inhuman and degrading treatment.

If the second authority does not complete its assessment or put arrangements in place before the move date, the adult concerned may not move on the intended date. Nonetheless the intended authority would be subject to the default duty and may incur expenditure as a result even though the adult (on the face of it) remains the responsibility of the first authority on ordinary residence principles. CA 2014 s.38(7) entitles the second authority to recover those costs from the first authority.

It is not uncommon for someone who was originally ‘placed out of area,’ by a local social services authority (in a care home, in supported living accommodation or in a shared lives scheme placement) to decide to move into his or her own accommodation in that area. At the point just before the person’s move he or she will be deemed to be ordinarily resident in the area of the placing local authority, but after the move, will be ordinarily resident in the area in which he or she was placed. Section 37(3) makes it clear that the ‘continuity of care’ provisions apply in these circumstances, the placing authority being the first authority and the authority for the area in which the person was placed, the second authority.’ (Clements, paragraphs 3.37 and 3.38).

Paragraphs 20.1 to 20.51 of the Statutory Guidance state how the process should operate as follows:

‘20.1   People with care and support needs may decide to move home just like anyone else, such as to be closer to family or to pursue education or employment opportunities, or because they want to live in another area. Where they do decide to move to a new area and as a result their ordinary residence status changes (see chapter 19 on ordinary residence), it is important to ensure that care and support is in place during the move, so the person’s wellbeing is maintained.

20.2    In circumstances where a person is receiving local authority support and moves within their current local authority (for example, moving between homes in the same area), they would remain ordinarily resident within that authority and it must continue to meet their needs. Where the person chooses to live in a different local authority area, the local authority that is currently arranging care and support and the authority to which they are moving must work together to ensure that there is no interruption to the person’s care and support.

20.3    The continuity of care chapter sets out the process local authorities must follow to ensure that the person’s care and support continues, without disruption, during and after the move. These procedures also apply where the person’s carer is receiving support and will continue to care for the adult after they have moved. In addition to meeting their responsibilities in these sections, authorities are reminded that the other requirements of Part 1 of the Act apply during this process, and authorities should refer to the guidance on wellbeing, prevention, information and advice, integration, assessment and eligibility, and care and support planning.

20.4    The aim of this process is to ensure that the person with care and support needs will be able to move with the confidence that arrangements to meet their needs will be in place on the day of the move. Local authorities are expected to achieve continuity of care by ensuring that the second authority has completed a needs assessment and developed a care and support plan for the individual prior to the day of the move. It is possible that the second local authority might be unable to complete a needs assessment prior to the day of the move due to the logistics of assessing a person a long distance away or because they want to assess the adult in their new home. If the second authority has not carried out the assessment prior to the move, it must continue to meet the needs and take into account outcomes identified in the adult’s current care and support plan until it has carried out its own assessment.

20.5    The key to ensuring that the adult’s care is continued is through both local authorities working together and that the adult and their carer, if they are continuing to care for the adult, are at the centre of the process.

Definitions

20.6    For the purpose of this chapter the following meaning applies:

Adult

Means the person who needs care and support, and is or is intending to move to another authority.

Carer(s)

Refers to any carer(s) that the person may have who has decided to continue to care for the adult after they have moved to the new area|.

New carer

Refers to any new person who will take over the caring role when the adult moves to the new area.

Person or individual

Refer to both the adult needing care and support and the carer.

First authority

The local authority where the person lives and is ordinarily resident prior to moving.

Second authority

The local authority the person is wishing to move to.

Assessment

Refers to both a needs assessment and a carer’s assessment.

Making an informed decision to move to a different local authority

20.7    When contemplating the possibility of moving, an adult may want to find out information about the care and support available in one or more authorities. Local authorities may already make much of this information publicly available in accordance with its general duties under the Care Act (see chapter 3), and they should provide any extra information requested by the adult and where relevant, their carer.

20.8    Local authorities can provide the adult and their carer with relevant information or advice to help inform their decision. When providing relevant information and advice, local authorities should guard against influence over the final decision. The authorities can, for example, provide advice on the implications for the individual’s care and support (and their carer’s support), but the final decision on whether or not to move is for the adult and, if relevant, the carer to make.

20.9    The prompt provision of this information will help the adult make an informed decision and assist the process if the adult decides that they want to move.

Confirming the intention to move

20.10 The continuity of care process starts when the second authority is notified of the adult’s intention to move. Local authorities may find out about the person’s intention to move from the individual directly or through someone acting on their behalf, who may contact either the first authority or the second authority to tell them of their intentions. If the person has approached the first authority and informed them of their intention to move, the first authority should make contact with the second authority to tell them that the person is planning on moving to their area.

20.11 When the person has confirmed their intention to move with the second authority, the authority must assure itself that the person’s intention is genuine. This is because the duties in the Act flow from this point.

20.12 To assure itself that the intention is genuine, the second authority should:

  • establish and maintain contact with the person and their carer to keep abreast of their intentions to move
  • continue to speak with the first authority to get their view on the person’s intentions
  • ask if the person has any information or contacts that can help to establish their intention

20.13 When the second authority is satisfied that the person’s intentions to move are genuine, it must provide the adult and the carer if also intending to move, with accessible information about the care and support available in its area. This should include but is not limited to, details about:

  • the types of care and support available to people with similar needs, so the adult can know how they are likely to be affected by differences in the range of services available
  • support for carers
  • the local care market and organisations that could meet their needs
  • the local authority’s charging policy, including any charges which the person may be expected to meet for particular services in that area

20.14 Where the person moving currently receives a direct payment to meet some or all of their needs, the first authority should advise the person that they will need to consider how to meet any contractual arrangements put in place for the provision of their care and support. For instance, any contracts a person may have with personal assistants who may not be moving with them.

Supporting people to be fully involved

20.15 The person may request assistance from either the first or second authority in helping them understand the implications of their move on their care and support, and the authority should ensure that they have access to all relevant information and advice. This should include consideration of the need for an independent advocate in helping the person to weigh up their options (see chapter 7 on advocacy).

20.16 There will be situations where the adult may lack capacity to make a decision about a move, but the family wish to move the adult closer to where they live.

20.17 The local authority must in these situations first carry out supported decision making, supporting the adult to be as involved as possible and must carry out a capacity assessment and where necessary then take ‘best interests’ decisions. The requirements of the Mental Capacity Act 2005 apply to all those who may lack capacity.

Preparing for the move

20.18 Once the second authority has assured itself that the adult’s and where relevant the carer’s intentions to move are genuine, it must inform the first authority. At this stage, both authorities should identify a named staff member to lead on the case and be the ongoing contact during the move. These contacts should make themselves known to the person and lead on the sharing of information and maintaining contact on progress towards arranging the care and support for the adult and support for the carer. These contacts should be jointly responsible for facilitating continuity of care within an acceptable timeframe, taking into consideration the circumstances behind the adult’s intention to move, such as a job opportunity.

20.19 The second authority must provide the adult and carer with any relevant information that it did not supply when the person was considering whether to move.

20.20 When the first authority has been notified by the second authority that it is satisfied that the person’s intention to move is genuine, the first authority must provide it with:

  • a copy of the person’s most recent care and support plan
  • a copy of the most recent support plan where the person’s carer is moving with them
  • any other information relating to the person or the carer (whether or not the carer has needs for support), that the second authority may request

20.21 The information the second authority may request may include the most recent needs assessment if the person’s needs are not likely to change as a result of the move, the adult’s financial assessment, any safeguarding plan that have been completed for the individual, and, where a Deprivation of Liberty has been authorised for a person who is moving to a new local authority area, then a new referral for a Deprivation of Liberty must be made to the new local authority.

People receiving services under children’s legislation

20.22 The continuity of care provisions will not apply for people receiving services under children’s legislation. Where such a person has had a transition assessment (see chapter 16) but is moving area before the actual transition to adult care and support takes place, the first local authority should ensure that the second is provided with a copy of the assessment and any resulting transition plan. Similarly, where a child’s carer is having needs met by adult care and support in advance of the child turning 18 (following a transition assessment), the first local authority should ensure that the second is provided with a copy of the assessment and the carer’s support plan.

Assessment and care and support planning

20.23 If the person has substantial difficulty and requires help to be fully involved in the assessment or care planning process and there is no other suitable person who can support them, the Act requires that they must be provided with an independent advocate. In this case the advocate should be provided by the second authority because it takes over the responsibility for carrying out the assessment and care planning with the individual (see chapter 7).

20.24 The second authority must contact the adult and the carer to carry out an assessment and to discuss how arrangements might be made. The second authority should also consider whether the person might be moving to be closer to a new carer and whether that new carer would benefit from an assessment.

20.25 Throughout the assessment process, the first authority must keep in contact with the second authority about progress being made towards arranging necessary care and support for the day of the move. The first authority must also keep the adult and the carer informed and involved of progress so that they have confidence in the process. This should include involving them in any relevant meetings about the move. Meetings may not always be face-to-face where there are long distances between the local authorities involved. Having this 3-way contact will keep the individuals at the centre of the process, and help ensure that arrangements are in place on the day of the move.

20.26 All assessments, for adults with care and support needs and carers, must be carried out in line with the processes described in chapter 6 of this guidance. The adult and the carer, and anyone else requested, must be involved in the respective assessments. The assessments must identify the person’s needs and the outcomes they want to achieve. These could be the same as the outcomes the first authority was meeting or they could have changed with the person’s circumstances.

20.27 The assessment must consider whether any preventative services or advice and information would help either person meet those outcomes. The assessments should also consider the individuals’ own strengths and capabilities and whether support might be available from family, friends or within the new community to achieve their outcomes. In carrying out the assessments, the second authority must take into account the previous care and support plan (or support plan) which has been provided by the first authority.

20.28 Following the assessment and after determining whether the adult or carer has eligible needs, the second authority must involve the adult, the carer and any other individual the person requests, in the development of their care and support plan, or the carer’s support plan as relevant, and take all reasonable steps to agree the plan. The development of the care and support plan or carer’s support plan should include consideration of whether the person would like to receive a direct payment. Further guidance on care and support planning is provided in chapter 10.

20.29 The second authority should agree the adult’s care and support plan and carer’s support plan, including any personal budget, in advance of the move to ensure that arrangements are in place when the person moves into the new area. This should be shared with the individuals before the move so that they are clear how their needs will be met, and this must also set out any differences between the person’s original plan and their new care and support or support plan. Such differences could arise where the range of services in one local authority differs from the range of services in another. The second authority must also explain to the adult or carer where there are any differences in their needs.

20.30 The care and support plan should include arrangements for the entire day of the move. This should be agreed by the adult, the carers (existing and new as relevant) and both authorities. The first authority should remain responsible for meeting the care and support needs the person has in their original home and when moving. The second authority is responsible for providing care and support when the person and their carer move in to the new area. The person moving is responsible for organising and paying for moving their belongings and furniture to their new home.

20.31 In considering the person’s personal budget, the second authority should take into consideration any differences between the costs of making arrangements in the second authority compared with the first authority and provide explanation for such a difference where relevant. Where there is a difference in the amount of the personal budget, this should be explained to the person. It should also look to ensure that the person’s direct payment is in place in a timely manner since, for example, the person moving may have a personal assistant that is also moving and will require payment.

Integration

20.32 The adult and their carer may have health needs as well as care and support needs. Both local authorities should work with their local clinical commissioning groups (CCGs) to ensure that all of the adult’s and carer’s health and care needs are being dealt with in a joined-up way. Guidance to CCGs is set out in Who Pays? Determining Responsibility for Payments to Providers.

20.33 If the person also has health needs, the second authority should carry out the assessment jointly with their local CCG. Alternatively, if the CCG agrees, the second authority can carry out the assessment on its behalf. Having a joint assessment ensures that all of the person’s needs are being assessed and the second authority can work together with the CCG to prepare a joint plan to meet the adult’s care and support and health needs. Where relevant, the local authority may use the cooperation procedures set out in the Care Act to require cooperation from the CCG, or other relevant partners, in supporting with the move (for further detail on these procedures, see chapter 15).

20.34 Providing joint care and support and health plans will avoid duplication of processes and the need for multiple monitoring regimes. Information should be shared as quickly as possible with the minimum of bureaucracy. Local authorities should work alongside health and other professionals where plans are developed jointly to establish a ‘lead’ organisation which undertakes monitoring and assurance of the combined plan. Consideration should be given to whether a person should receive a personal budget and a personal health budget to support integration of services. More information about personal budgets, including how to integrate them with personal health budgets can be found in chapter 11.

Equipment and adaptations

20.35 Many people with care and support needs will also have equipment installed and adaptations made to their home. Where the first authority has provided equipment, it should move with the person to the second authority where this is the person’s preference and it is still required and doing so is the most cost-effective solution. This should apply whatever the original cost of the item. In deciding whether the equipment should move with the person, the local authorities should discuss this with the individual and consider whether they still want it and whether it is suitable for their new home. Consideration will also have to be given to the contract for maintenance of the equipment and whether the equipment is due to be replaced.

20.36 As adaptations are fitted based on the person’s accommodation, it may be more practicable for the second authority to organise the installation of any adaptations. For example, walls need to be checked for the correct fixing of rails.

20.37 Where the person has a piece of equipment on long-term loan from the NHS, the second local authority should discuss with the relevant NHS body. The parties are jointly responsible for ensuring that the person has adequate equipment when they move (see chapter 15 on cooperation and integration).

Copy of documentation

20.38 The second authority must provide the adult and the carer and anyone else requested with a copy of their assessments. This must include a written explanation where it has assessed the needs as being different to those in the care and support plan or the carer’s support plan provided by the first authority. The second authority must also provide a written explanation if the adult’s or carer’s personal budget is different to that provided by the first authority.

What happens if the second authority has not carried out an assessment before the day of the move?

20.39 The second local authority is generally expected to have carried out their needs assessment of the persons moving prior to the day of the move. However, there may be occasions where the authority has not carried out the assessments or has completed the assessments but has not made arrangements to have support in place. This might happen where the second authority wants to assess the person in their new home and consider if their needs have changed, for example because they have started a new job or are now in education, or they have moved to be closer to family. The second authority must still have made contact with the adult and their carer in advance of the move.

20.40 Where the full assessment has not taken place prior to the move, the second authority must put in place arrangements that meet the adult’s or carer’s needs for care and support as identified by the first authority. These arrangements must be in place on the day of the move and continue until the second authority has carried out its own assessment and put in place a care and support plan which has been developed with the person (see Chapters 6-10).

20.41 The second authority must involve the adult and carer, and any relevant independent advocate, as well as any other individual that either person may request, when deciding how to meet the care and support needs in the interim period. The authority must take all reasonable steps to agree these temporary arrangements with the relevant person.

Matters local authorities must have regard to when making arrangements

20.42 The Care and Support (Continuity of Care) Regulations 2014 require the second authority to have regard to the following matters when meeting the person’s needs in advance of carrying out their own assessment:

Care and support plan

The adult’s care and support plan, and the carer’s support plan if the carer is also moving, which were provided by the first authority. The second authority should discuss with the adult and the carer how to meet their eligible needs and any other needs that the first authority was meeting that are not deemed as eligible but were included in either plan.

Outcomes

Whether the outcomes that the adult and the carer were achieving in day-to-day life in their first authority are the outcomes they want to achieve in the new authority, or whether their aims have changed because of the move.

Preferences and views

The preferences and views of the adult and the carer on how their needs are met during the interim period.

20.43 The second authority must also consider any significant difference to the person’s circumstances where that change may impact on the individual’s wellbeing, including:

Support from a carer

Whether the adult is currently receiving support from a carer and whether that carer is also moving with them. Where the carer is not moving the second authority must consider how to meet any needs previously met by the carer, even if the first authority was not providing any service in relation to those needs.

Suitability of accommodation

Where the new accommodation is significantly different from the original accommodation and this changes the response needed to meet the needs. For example, the adult may move from a ground floor flat to a first floor flat and now need assistance to manage stairs.

Where the person has received equipment or had adaptations installed in their original home by the first authority, the procedures set out in paras. 20.35-20.37 should be followed.

Access to services and facilities

Where the services and facilities in the new area are different, and in particular fewer than those in the originating area; for example access to food deliveries or other food outlets, access to public transport, or access to leisure or recreational facilities, the person’s workplace. A move from an urban to a rural environment could bring this about.

Access to other types of support

Where the person was receiving support from friends, neighbours or the wider community and this may not readily be available in their new area.

  • where the person makes use of universal services such as local authority day services, drop in support, or befriending schemes, and these are not available in the new area

20.44 If the person has substantial difficulty in being fully involved in the assessment, care planning or review process the second authority should consider whether the person needs an independent advocate or whether their original advocate is moving with them (see chapter 7 on advocacy).

20.45 The second authority should ascertain this information from relevant documentation sent to them or by talking to the individuals involved, and the first authority.

20.46 The adult or carer should not be on an interim care and support (or support) package for a prolonged period of time as a tailored care and support (or support) plan must be put in place. The second authority should carry out the assessment in a timely manner.

When the adult does not move or the move is delayed

20.47 There are a range of reasons why a person might not move on the designated day. This may be, for example, because they have become unwell, there has been a delay in exchanging contracts. Where there has been a delay because of unforeseen circumstances, both authorities should maintain contact with the person to ensure that arrangements are in place for the new date of the move.

20.48 If the person’s move is delayed and they remain resident in the area of the first authority, they will normally continue to be ordinarily resident in that area and so the first authority will remain responsible for meeting the person’s and the carer’s needs. Both local authorities may have incurred some expense in putting arrangements in place before the move was delayed. In such circumstances each of the authorities should consider agreeing to cutting their losses incurred in preparing continuity of care.

20.49 In circumstances where the second authority has not assessed the person prior to the move and is planning to meet needs based on their original care and support plan, but it transpires that the individual does not move to the second authority (and so the first authority remains responsible for providing care and support), the Care Act does provide for the second authority to be able to recover any costs it incurred from the first authority. In deciding whether to recover these costs the second authority may want to consider, for example, whether the first authority was aware that the person was not going to move and had not told the second authority or whether the first authority was not aware and was unable to advise the second authority not to make arrangements. The second authority should consider whether it would be reasonable to recover their costs depending on the circumstances of the case.

Disputes about ordinary residence and continuity of care

20.50 Where local authorities are in dispute over application of the continuity of care provisions, the authorities who are parties to the dispute must not allow their dispute to prevent, delay or adversely affect the meeting of the person’s needs. Where the authorities cannot resolve their differences, the steps described in chapter 19 on ordinary residence disputes must be taken to ensure that the person is unaffected by the dispute and will continue to receive care for the needs that were identified by the first local authority.

Making complaints

20.51 It is important that individuals have confidence in the assessment process and the wider care and support system. Therefore any individual should be able to make a complaint and challenge decisions where they believe a wrong decision has been made in their case. Current complaints provision for care and support is set out in regulations Local Authority Social Services and NHS Complaints Regulations 2009, made under powers in Sections 113 to 115 of the Health and Social Care (Community Health and Standards Act) 2003. The provisions of the regulations mean that anyone who is dissatisfied with a decision made by the local authority would be able to make a complaint about that decision and have that complaint handled by the local authority. The local authority must make its own arrangements for dealing with complaints in accordance with the Local Authority Social Services and National Health Service (England) Complaints Regulations 2009 No. 309.’

Case where assessments not complete on day of move (s.38)

(1)     If, on the day of the intended move as mentioned in section 37(1)(b), (2)(b) or (3)(b), the second authority has yet to carry out the assessment or assessments under section 37(6), or has done so but has yet to take the other steps required under this Part in the adult’s case, it must—

(a)     meet the adult’s needs for care and support, and the needs for support of any carer who is continuing as the adult’s carer, which the first authority has been meeting, and

(b)     where the first authority has been keeping a care account in the adult’s case, itself keep that account on the same basis as the first authority has been keeping it.

(2)     The second authority is subject to the duty under subsection (1) until it has—

(a)     carried out the assessment or assessments under section 37(6), and

(b)     taken the other steps required under this Part in the adult’s case.

(3)     In deciding how to meet the adult’s needs for care and support under subsection (1), the second authority must involve—

(a)     the adult,

(b)     any carer who is continuing as the adult’s carer, and

(c)     any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.

(4)     In deciding how to meet the needs for support of any carer who is continuing as the adult’s carer, the second authority must involve—

(a)     the carer,

(b)     the adult needing care, if the carer asks the authority to do so, and

(c)     any other person whom the carer asks the authority to involve.

(5)     In performing the duty under subsection (3)(a) or (4)(a), the second authority must take all reasonable steps to reach agreement with the adult or carer about how it should meet the needs in question.

(6)     The first authority is not required to meet the adult’s needs for care and support or, if the adult has a carer, such needs for support as the carer has, for so long as the second authority is subject to the duty under subsection (1).

(7)     Where, having complied with the duty under subsection (1), the second authority is not required to meet the adult’s needs for care and support under section 18 because the adult is still ordinarily resident in the area of the first authority, the second authority may recover from the first authority the costs it incurs in complying with the duty under subsection (1).

(8)     Regulations may specify matters to which the second authority must have regard in deciding how to perform the duty under subsection (1).

Commentary

Where a person’s ordinary residence is (s.39)

(1)     Where an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in regulations, and the adult is living in accommodation in England of a type so specified, the adult is to be treated for the purposes of this Part as ordinarily resident—

(a)     in the area in which the adult was ordinarily resident immediately before the adult began to live in accommodation of a type specified in the regulations, or

(b)     if the adult was of no settled residence immediately before the adult began to live in accommodation of a type so specified, in the area in which the adult was present at that time.

(2)     Where, before beginning to live in his or her current accommodation, the adult was living in accommodation of a type so specified (whether or not of the same type as the current accommodation), the reference in subsection (1)(a) to when the adult began to live in accommodation of a type so specified is a reference to the beginning of the period during which the adult has been living in accommodation of one or more of the specified types for consecutive periods.

(3)     The regulations may make provision for determining for the purposes of subsection (1) whether an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in the regulations.

(4)     An adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 (after-care) is to be treated for the purposes of this Part as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the adult with services under that section is imposed; and for that purpose—

(a)     “local authority in England” means a local authority for the purposes of this Part, and

(b)     “local authority in Wales” means a local authority for the purposes of the Social Services and Well-being (Wales) Act 2014.

(5)     An adult who is being provided with NHS accommodation is to be treated for the purposes of this Part as ordinarily resident—

(a)     in the area in which the adult was ordinarily resident immediately before the accommodation was provided, or

(b)     if the adult was of no settled residence immediately before the accommodation was provided, in the area in which the adult was present at that time.

(6)     “NHS accommodation” means accommodation under—

(a)     the National Health Service Act 2006,

(b)     the National Health Service (Wales) Act 2006,

(c)     the National Health Service (Scotland) Act 1978, or

(d)     Article 5(1) of the Health and Personal Social Services (Northern Ireland) Order 1972.

(7)     The reference in subsection (1) to this Part does not include a reference to section 28 (independent personal budget).

(8)     Schedule 1 (which makes provision about cross-border placements to and from Wales, Scotland or Northern Ireland) has effect.

Commentary 

CA 2014 Schedule 1, regulations and chapter 21 of the Statutory Guidance explain how it is to be determined where an individual’s ordinary residence is when they move from one of the UK’s four ‘territories’ to another.

Paragraphs 19.5 to 19.11 of the Statutory Guidance state,

‘19.5   Ordinary residence is one of the key tests which must be met to establish whether a local authority is required to meet a person’s eligible needs. It is therefore crucial that local authorities establish at the appropriate time whether a person is ordinarily resident in their area, and whether such duties arise.

19.6    The test for ordinary residence, which determines which local authority would be responsible for meeting needs, applies differently in relation to adults with needs for care and support and carers. For adults with care and support needs, the local authority in which the adult is ordinarily resident will be responsible for meeting their eligible needs. For carers, however, the responsible local authority will be the one where the adult for whom they care is ordinarily resident.

19.7    Establishing responsibility for the provision of care and support for carers, therefore, requires the local authority to consider the ordinary residence of the adult needing care. However, there may be some cases where the carer provides care for more than one person in different local authority areas.

19.8    Where there is more than one local authority involved, those authorities should consider how best to cooperate on and share the provision of support. For example, where there are services or interventions that directly relate to the caring responsibilities towards one individual (for example, equipment installed in the carer’s home to accommodate one of the people), then it would be a straightforward matter of the relevant authority being responsible. Where that same piece of equipment serves for other people cared-for, then the local authorities concerned should agree how to arrange the package. There might be an agreement to jointly fund the support for the carer, or the authorities concerned may agree that one takes overall responsibility for certain aspects. For example, one might lead on reviews because it is geographically closer to the carer’s home.

19.9    The Care Act contains all the necessary powers for joint assessments and support planning, plus the duties to co-operate to provide a mechanism for one of the authorities to require the cooperation of the other, if needed.

19.10 Local authorities must determine whether an individual is ordinarily resident in their area following the needs or carer’s assessment, and after determining whether the person has eligible needs (see chapter 6).

19.11 The determination of ordinary residence must not delay the process of meeting needs. In cases where ordinary residence is not certain, the local authority should meet the individual’s needs first, and then resolve the question of ordinary residence subsequently. This is particularly the case where there may be a dispute between 2 or more local authorities.’

‘The statutory guidance in its summary of the Cornwall judgment (at paragraph 19.21) highlights the court’s reference to the ‘underlying purpose’ of the ordinary residence regime and the deeming provisions was to ensure that ‘an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it’ (para 54 of the judgment).’ (Clements, paragraph 6.19).

  1. CA2014 does not define ‘ordinary residence’.
  2. ‘lt will generally be the place where a person normally resides: where the person’s normal residential address is to be found.'(Paragraph 6.13 of Clements).
  3. The Statutory Guidance states,

‘How to determine ordinary residence

19.12          The local authority’s responsibility for meeting a person’s eligible needs under the Care Act is based on the concept of ordinary residence. However, there is no definition of ordinary residence in the Care Act. Therefore, the term should be given its ordinary and natural meaning.

19.13          ln most cases, establishing the person’s ordinary residence is a straightforward matter. However, this is not always the case. There will be circumstances in which ordinary residence is not as clear cut, for example when people spend their time in more than one area, or move between areas. Where uncertainties arlse, local authorities should always consider each case on its own merits.

19.14          The concept of ordinary residence involves questions of both fact and degree. Factors such as time, intention and continuity (each of which may be given different weight according to the context) have to be taken into account. The courts have considered the meaning of ordinary residence and the leading case is that of Shah v London Borough of Barnet [1983]. ln this case, Lord Scarman stated that:

unless … it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view that ordinarily residence 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.

19.15          Local authorities must always have regard to this case when determining the ordinary residence of adults who have capacity to make their own decisions about where they wish to live. Local authorities should in particular apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether for a short or long duration. Ordinary residence can be acquired as soon as the person moves to an area, if their move is voluntary and for settled purposes, irrespective of whether they own, or have an interest in a property in another local authority area. There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there, because it depends on the nature and quality of the connection with the new place.’

  1. ‘[The] statutory guidance makes clear that previous court judgments concerning the interpretation [of the phrase ‘ordinary residence remain relevant… The ‘determinations’ made by the secretary of state (i.e. arising out of local authority disputes) will also continue to be of relevance.'(Clements, paragraphs 6.12 and 6.32).

In R v Barnett LBC ex p Shah [1983] 2 AC 309 HL, Lord Scarman held that in determining a person’s ordinary residence, ‘the person’s long term future intentions or expectations were not relevant; he felt was not what was a person’s real home, but whether a person could show a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences. A person’s attitude is only relevant in two respects; (a) the residence must be voluntarily adopted, and (b) there must be a settled purpose in living in the particular residence.’ (Clements, paragraph 6.1 4).

Where P has capacity

  1. Paragraph 19.50 of the Statutory Guidance states, ‘where the person moves to accommodation in a different area of their own volition, without the local authority making the arrangements, they would be likely to acquire ordinary residence in the area of the authority where the new accommodation is situated. The deeming rule does not apply where a person has chosen to arrange their own care in a type of specified accommodation in another area, and then later asks for local authority support.’
  2. The issues the court should consider in determining whether a move is voluntary include the length of time P has been living in the area of the new local authority following her move.
  3. ln R (Mani) v Lambeth LBC [2002] EWHC 735 (admin), relying upon Lord Slynn’s analysis in Mohamed v Hammersmith & Fulham LBC [2001] UKHL 57, the court held that because the applicant had been living in the area for six months, his residence. Was sufficiently voluntary.
  4. At paragraph 18 Lord Slynn stated,

‘lt is clear that words like ordinary residence and normal residence may take their precise meaning from the context of the legislation in which they appear but it seems to me that the prima facie meaning of normal residence is a place where at the relevant time the person in fact resides. That therefore is the question to be asked and it is not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides. lf a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm that is where during that period he is normally resident, however much he might prefer some more permanent or better accommodation. ln a sense it is “shelter” but is also where he resides. Where he is given interim accommodation by a local housing authority even more clearly is that the place where for the time being he is normally resident. The fact that it is provided subject to statutory duty does not, contrary to the appellant authority’s argument, prevent it from being sutch.’

Where P lacks capacity

  1. Where P lacks capacity the Statutory Guidance states,

‘19.16          For people who lack capacity to make decisions about their accommodation… , the judgment in the case of R (on the application of Cornwall Council) Secretary of State & Ors [2015] UKSC46 (Cornwall) is appropriate because a person’s lack of mental capacity may mean that they are not able to voluntarily adopt a particular place of residence.

19.26          Where a person lacks the capacity to decide where to live and uncertainties arise about their place of ordinary residence, direct application of the test in Shah will not assist since the Shah test requires the voluntary adoption of a place.

19.27          The Supreme Court judgment in Cornwall made clear that the essential criterion in the language of the statute ‘is the residence of the subject and the nature of that residence’.

19.29          At paragraph 47, the judgment refers to the attributes of the residence objectively viewed.

19.30          At paragraph 49, the judgment refers to an: assessment of the duration and quality of actual residence.

19.31          At paragraphs 47 and 52, the judgment refers to residence being ‘sufficiently settled’.

19.32          Therefore with regard to establishing the ordinary residence of adults who lack capacity, 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.

19.33          Physical presence provides a starting point for considering ordinary residence but does not necessarily equate to ordinary residence – a person could be physically present in an area but of no settled residence. This is covered in paragraphs 19.44 to 19.46 of the Care Act statutory guidance.

19.34          ln certain situations, ordinary residence could be deemed to be in a different area to that in which a person is physically present. This is covered in paragraphs 19.44 to 19.59 of the Care Act statutory guidance and in the section below on looked after children transitioning to adult social care services.

19.35          Other situations such as temporary absences and people having more than one home are covered in paragraphs 19.70 to 19.74 of the Care Act statutory guidance.

19.36          The issue of duration is covered in paragraph 19.15 of the Care Act statutory guidance.’

C42014, s.39(4) provides that an adult who is being provided with accommodation under MHA 1983 s.117 is to be treated for the purposes of the CA 2014 ‘as ordinarily resident in the area of the local authority in England… on which the duty to provide the adult with services under that section is imposed.’

Deeming provisions 

  1. CA 2014 s.39 contains two ‘deeming’ provisions: situations where a person although resident in one area, may be deemed to be resident elsewhere for the purposes of CA 2014.
  1. One such provision relates to persons in local authority arranged placements and the other to persons being discharged from NHS accommodation.

Arranged accommodation placements 

  1. The National Assistance Act 1948 (‘NAA 1948’) contained a deeming provision in relation to residential accommodation placements made by a local authority: namely that persons provided with such accommodation by a social services authority were, in effect deemed to be ordinarily resident in the placing authority’s area even if the accommodation is situated in the area of another authority. The CA 2014 continues this principle but expands its scope.
  1. The wording of s.39(1) and (2) is contorted.
  1. Although s.39 makes provision for regulations, these have only been issued in relation to the types of accommodation that are covered by this deeming rule – i.e. care homes, supported living and shared lives schemes.
  1. This means that explanations as to the meaning of key (and potentially contentious) phrases are left to the Statutory Guidance.
  1. The intention behind subsections 39(1) and (2) is relatively clear, namely that where a local authority ‘A’ assesses an individual and as a result decides to ‘fund’ (or in the case of a self-funder enters into a contract with the provider) that person in accommodation of a specified kind in local authority ‘B’, then nevertheless A is deemed to be the person’s ordinary residence.
  2. Paragraph 19.50 of the Statutory Guidance explains,

‘… the adult is treated as remaining ordinarily resident in the area where they were resident immediately before the local authority began to provide or arrange care and support in any type of specified accommodation. The consequence of this is that the local authority which first provided that care and support will remain responsible for meeting the person’s eligible needs, and responsibility does not transfer to the authority in whose area the accommodation is physically located.’

  1. This presumption only applies where the local authority makes the necessary arrangements (i.e. with the accommodation provider) and that if the person moves into the accommodation, ‘in a different area of their own volition, without the local authority making the arrangements, they would be likely to acquire ordinary residence in the area of the authority where the new accommodation is situated.’ (Paragraph 19.50).
  1. There is an additional condition that must be satisfied before the first deeming rule is triggered, and this concerns the requirement that the person’s support needs ‘can be met only if’ living in accommodation of the specified type.
  1. Paragraph 19.51 of the Statutory Guidance states,

‘Need should be judged to be ‘able to be met’ or of a kind that ‘can be met only’ through a specified type of accommodation where the local authority has made this decision following an assessment and a care and support planning process involving the person. Decisions on how needs are to be met, made in the latter process and recorded in the care and support plan, should evidence that needs can only be met in that manner. Where the outcome of the care planning process is a decision to meet needs in one of the specified types of accommodation and it is the local authority’s view it should be assumed that needs can only be met in that type of accommodation for the purposes of ‘deeming’ ordinary residence. This should be clearly recorded in the care and support plan. The local authority is not required to demonstrate that needs cannot be met by any other type of support. The local authority must have assessed those needs in order to make such a decision – the ‘deeming’ principle therefore does not apply to cases where a person arranges their own accommodation and the local authority does not meet their needs.’

  1. However the phrase ‘it should be assumed’ appears to create a rebuttable presumption rather than a final determination.
  1. The first deeming rule does not arise where a person makes their own arrangements to move into accommodation of the specified kind and this will be the general case even if the local authority assists with the move, provided it does not make the contract with the home.
  1. Assistance with finding a placement but falling short of making a contract does not constitute making the arrangements: taking someone to the home does not in itself, constitute making the placement. However where the local authority is a contracting party, the rule applies even if the person is in effect a ‘self-funder’ but has relied upon the local authority to make the contract with the care home.

Cross-border placements by local authorities 

  1. Section 39(8) states, ‘Schedule 1 (which makes provision about cross-border placements to and from Wales, Scotland or Northern Ireland) has effect.’ Where the placement is in nursing home accommodation, separate bilateral agreements exist in relation to the four ‘administrations’, as to which bears the costs of NHS funded nursing care required for individuals.
  1. CA 2014 Schedule 1, provides that where as a result of an assessment, a person in placed in accommodation in England by a Welsh, Scottish or Northern Irish authority, the individual is deemed to remain ordinarily resident in the Welsh, Scottish, or Northern Irish authority’s area.
  1. Statutory Guidance, paragraphs 21.6 – 21.41 describe the choreography of cross-border placements where the placing authority ‘A’ retains responsibility.
  1. This includes discussion with the individual and family/friends ; identification of a suitable placement; contact with the authority in whose area the accommodation is situated ‘B’; liaison and ongoing care management of the placement.
  1. The Statutory Guidance states,

‘21.3            People’s health and wellbeing are likely to be improved if they are close to a support network of friends and family. In a small number of cases an individual’s friends and family may be located in a different country of the UK from that in which they reside.

21.4             In the production of a care and support plan, the authority  and the individual concerned may reach the conclusion that the individual’s wellbeing is best achieved by a placement into care home accommodation (‘a residential placement’) in a different country of the UK. Schedule 1 to the Care Act sets out certain principles governing cross-border residential care placements.

21.5             As a general rule, responsibility for individuals who are placed in cross-border residential care remains with the first authority. This guidance sets out how the first and second authorities should work together in the interests of individuals receiving care and support through a cross-border residential placement.

Principles

21.6             The 4 administrations of the UK (England, Scotland, Wales and Northern Ireland) have worked together to agree Schedule 1 and this accompanying guidance. Underpinning this close co-operation have been 2 guiding principles that those involved in making cross-border residential care placements should abide by.

A person-centred process

21.7             The underlying rationale behind Schedule 1 is to improve the wellbeing of individuals who may benefit from a cross-border residential care placement. If an authority, in creating an individual’s tailored care and support plan, believes a cross-border placement could be appropriate they should discuss this with the individual and/or their representative. In making the resulting arrangements, authorities should and in certain cases, must have regard to views, wishes, feelings and beliefs of the individual.

Reciprocity and cooperation

21.8             The smooth functioning of cross-border arrangements is in the interests of all parties – and most importantly the interests of those in need of a residential placement – in all authorities and territories of the UK. It is not envisaged that authorities will suffer significant added financial disadvantage by making cross-border placements. All authorities are expected to co-operate fully and communicate properly. In the circumstances where individuals may need care and support from the second authority (for example, in the event of unforeseen and urgent circumstances such as provider failure) the second authority may have a duty to meet such needs and there should be no delay in the discharge of such a duty (arrangements to recoup costs can always be made subsequently).

21.9             Local authorities in England making a cross-border placement should be aware that in general the duties specified in the Act, and this statutory guidance, apply to cross-border placements as they apply to placements within an authority’s own area. This guidance applies to cross-border placements of any duration.

Cross-border residential placements

21.10          Authorities should follow the following broad process for making cross-border residential placements. Authorities may wish to adapt this process to fit their needs; but in general, authorities should aim to follow, as far as possible, the processes set out below.

21.11          Authorities may wish to designate a lead official for information and advice relating to cross-border placements and to act as a contact point.

21.12          These steps should be followed whenever a cross-border residential placement is arranged by an authority, regardless of whether it is paid for by that authority or by the individual.

Step 1: care and support planning

21.13          A need for a cross-border residential care placement will be determined as part of the overall care and support plan prepared by the authority, in partnership with the individual concerned.

21.14          Authorities should, in assessing care and support needs, establish what support networks (for example, friends and family) the individual concerned has in their current place of residence. In discussions with the individual and other relevant parties, enquiries should be made as to whether a support network exists elsewhere. Alternatively, the individual (or their family or friends) may proactively raise a desire to move to an area with a greater support network or to move to an area for other reasons.

21.15          Authorities should give due consideration as to how to reflect cross-border discussions with the individual in the care and support planning process.

21.16          Where it emerges that residential care in a different territory of the UK may be appropriate for meeting the person’s needs, the authority should inform the individual concerned (and/ or their representative) of the potential availability of a cross-border placement if the individual (and/ or their representative) has not already raised this themselves.

21.17          Should the individual wish to pursue the potential for a cross-border placement, the authority will need to consider carefully the pros and cons. Questions the authority may wish to address could include:

  • Would the support network in the area of the proposed new placement improve (or at least maintain) the individual’s wellbeing?
  • What effect might the change of location have on the individual’s wellbeing? How well are they likely to adapt to their new surroundings?
  • Is the individual in receipt of any specialist health care? Will the locality of the proposed new placement allow for the satisfactory continuation of this treatment?
  • Where the individual lacks the mental capacity to decide where to live, who is the individual’s representative? The representative should be consulted and in certain cases there will be a duty to involve such persons in carrying out a needs assessment.

21.18          With the permission of the individual concerned (or their representative), the authority should approach the friends and/or family of the individual concerned who are resident in the area of the proposed new placement (and, any friends and/ or family in the area of their current residence) to seek their views on the perceived benefits of the placement and any concerns they may have.

21.19          Should a cross-border placement still appear to be in the interests of the individual’s wellbeing the authority should take steps to investigate which providers in the proposed new placement area exist and which are likely to be able to meet the needs of the individual. The authority should conduct all necessary checks and exercise due diligence as it would with any other residential placement.

21.20          In preparing a care and support plan, authorities should (and in England must) involve the individual, any carer of the individual, and any person whom the individual asks the authority to involve or, where the individual lacks capacity to ask the authority to involve others, any person who appears to the authority to be interested in the individual’s welfare. In involving the individual, the authority should (and in England must) take all reasonable steps to reach agreement with the individual about how the authority should meet the needs in question.

21.21          The individual should be kept informed and involved throughout the process. Their views on suitable providers should be sought and their agreement checked before a final decision is made. The benefits of advocacy in supporting the individual to express their wishes should be considered throughout and relevant duties met.

21.22          The individual should also be informed of the likelihood of the first authority giving notification of the placement to the second authority, seeking that authority’s assistance with management of the placement or with discharge of other functions, for example reviews, and of what this would involve. Where, for example, this would involve the sharing of information or the gathering of information by the second authority on behalf of the first, (see next section) the individual should be informed of this at the outset and their consent sought.

21.23          Authorities should strive to offer people a choice of placements.

Step 2: initial liaison between first and second authority

21.24          Once the placement has been agreed in principle (with the individual concerned and/or their representative) and the authority has identified a potential provider they should immediately contact the authority in whose area the placement will be made.

21.25          The first authority should:

  • notify the second authority of its intention to make a cross-border residential care placement
  • provide a provisional date on which it intends for the individual concerned to commence their placement
  • provide the second authority with details of the proposed provider
  • seek that authority’s views on the suitability of the residential accommodation

21.26          The initial contact can be made by telephone, but should be confirmed in writing.

21.27          The second authority has no power to ‘block’ a residential care placement into its area as the first authority contracts directly with the provider. In the event of the second authority objecting to the proposed placement, all reasonable steps should be taken by the first authority to resolve the issues concerned before making the placement.

21.28          Following the initial contact and any subsequent discussions (and provided no obstacles to the placement taking place have been identified) the first authority should write to the second authority confirming the conclusions of the discussions and setting out a timetable of key milestones up to the placement commencing.

21.29          The first authority should inform the provider that the placement is proposed – in the same way as with any residential placement. The first authority should ensure that the provider is aware that this will be a cross-border placement.

21.30          The first authority should contact the individual concerned and/or their representative to confirm that the placement can go ahead and to seek their final agreement. The first authority should also notify any family/friends that the individual has given permission and/ or requested to be kept informed.

21.31          The first authority should make all those arrangements that it would normally make in organising a residential care placement in its own area.

Step 3: arrangements for ongoing management of placement

21.32          A key necessity is for the first authority to consider with the second authority, arrangements for the on-going management of the placement and assistance with the performance of relevant care and support functions.

21.33          The first authority will retain responsibility for the individual and the management and review of their placement. In this regard, the authority’s responsibilities to the individual are no different than they would be if the individual was placed with a provider in the authority’s own area.

21.34          However, it is recognised that the practicalities of day-to-day management of a placement potentially hundreds of miles distant from the authority may prove difficult.

21.35          As such, the first authority may wish to make arrangements for the second authority to assist with the day-to-day placement management functions for example where urgent in-person liaison is required with the provider and/or individual concerned, or with regular care reviews which are for the first authority to perform (in accordance with its statutory obligations), but with which the second authority may be able to assist (for example, by gathering information necessary for the review and passing this to the first authority to make a decision).

21.36          It should be made clear that ultimate responsibility for exercising the functions remains with the first authority (they are obtaining assistance with the performance of these functions or, where applicable, authorising the exercise of functions on their behalf).

21.37          Any such arrangement should be detailed in writing – being clear as to what role the second authority is to play and for how long. Clarity should also be provided on the regularity of any reporting to the first authority and any payment involved for services provided by the second authority.

Step 4: confirmation of placement

21.38          When the placement has been confirmed, the first authority should notify the second authority and detail in writing all the arrangements made with the second authority for assistance with on-going placement management and other matters. The first authority should also confirm the date at which the placement will begin.

21.39          The second authority should acknowledge receipt of these documents/information and give its agreement to the arrangements in writing.

21.40          The first authority should provide the individual concerned and/or their representative with contact details (including whom to contact during an emergency) for both the first and second authority. If required, it is expected that the first authority will be responsible for organising suitable transport, and for the costs of it, to take the individual and their belongings to their new placement.

21.41          As would be the case normally, the first authority will normally be responsible for closing off previous placements or making other necessary arrangements regarding the individual’s prior residence.

Other issues to be considered during the organisation of a placement

Timeliness of organising and making a placement

21.42          Steps 1 to 4 should be conducted in a timely manner; the time taken should be proportionate to the circumstances.

Self-arranged placements

21.43          This guidance does not apply in relation to individuals who arrange their own care. Individuals who arrange and pay for their own care will normally become ordinarily resident in and/or the responsibility of the area to which they move. This guidance does apply to individuals who pay for their own care where that care (cross border placement) is arranged by an authority.’

Disputes about ordinary residence or continuity of care (s.40)

(1)     Any dispute about where an adult is ordinarily resident for the purposes of this Part, or any dispute between local authorities under section 37 about the application of that section, is to be determined by—

(a)     the Secretary of State, or

(b)     where the Secretary of State appoints a person for that purpose (the “appointed person”), that person.

(2)     The Secretary of State or appointed person may review a determination under subsection (1), provided that the review begins within 3 months of the date of the determination.

(3)     Having carried out a review under subsection (2), the Secretary of State or appointed person must—

(a)     confirm the original determination, or

(b)     substitute a different determination.

(4)     Regulations may make further provision about resolution of disputes of the type mentioned in subsection (1); the regulations may, for example, include—

(a)     provision for ensuring that care and support is provided to the adult while the dispute is unresolved;

(b)     provision requiring the local authorities in dispute to take specified steps before referring the dispute to the Secretary of State or (as the case may be) the appointed person;

(c)     provision about the procedure for referring the dispute to the Secretary of State or appointed person;

(d)     where a review of a determination has been carried out under subsection (2) and a different determination substituted, provision requiring a local authority to take specified steps (including paying specified amounts) in relation to the period before the determination was substituted.

Commentary 

  1. CA.2014 s.39(8) and Schedule I paragraph 5 provide for regulations that detail the process for resolving cross-border ordinary residence disputes. ln consequence , 2014 regulationsThe Care and Support (Cross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations have been issued along with guidance set out in paragraphs 21.58 to 21.68 of the Statutory Guidance. They make clear that the responsible nation for determining such disputes is the one in which the individual is actually residing.
  2. CA2014, Schedule 1, Paragraph 6 makes provision for the recovery of payments made by an authority where it subsequently transpires that P is the responsibility of another authority.
  3. The responsible nation for determining cross-border ordinary residence dispute, is the nation in which P is actually residing, i.e. England.
  4. Regulation 2 of the Gare and Support (Gross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations states,

‘2.      Responsibility for determination of disputes

(1)     The Responsible Person which is to determine a dispute between authorities is to be determined as follows.

(2)     Where the authorities which are parties to the dispute (“the authorities in dispute”) include a local authority in England, and the adult or carer to whom the dispute relates (“the relevant person”) is living in England as at the date the dispute is referred (“the relevant date”), the disputeis to be determined by the Secretary of Stafe. ‘

  1. Regulation 3 further states, ‘(1) For the purposes of these Regulations, the lead authority in relation to a dispute is the authority in whose area the adult or carer to whom the dispute relates is living as at the date on which the dispute arises. (2) lf that authority (A) is not one of the authorities which are parties to the dispute –

(a)               those authorities must, without delay, bring to A‘s attention A‘s duties under these Regulations; and

(b)               A is not under those duties until the date on which A is aware of, or could reasonably be expected to have been aware of, those duties.’

  1. The Statutory Guidance provides,

‘21.58          lf authorities have regard to and apply the suggested process and procedures outlined above and, more importantly, if the first and second authority work together in a spirit of reciprocity and cooperation and promptly communicate in order to ensure matters go smoothly, then there should be no need for dispute resolution. A dispute is most likely to occur because of lack of communication or following a communication breakdown/misunderstanding between first and second authority during the process of arranging the placement.

21.59          The 4 administrations of the UK have worked together on the contents of specific regulations governing the process of resolving a dispute. These regulations cover all disputes that arise about the application of paragraphs 1 to 4 of Schedule 1 to the Act

(general non-transfer of responsibility in the case of placements).

21.60          The Regulations under Schedule 1 state:

  • a dispute must not be allowed to prevent, interrupt, delay or otherwise adversely affect the meeting of an individual’s care and support needs
  • the authority in whose area the individual is living at the date the dispute arises is the lead authority for the purposes of duties relating to coordination and management of the dispute

21.61          ln the event of a dispute between 2 authorities where the individual is living in the area of one of those authorities when the dispute is refened, the Ministers/Northern lreland ‘ Department (NID) in whose jurisdiction that area lies would determine the dispute.  ln the event of other disputes between authorities, the Ministers/NlD in whose jurisdiction those authorities sit would decide between themselves as to who would determine the dispute.

21.62          Before a dispute is referred to the relevant Ministers/NlD, the authorities concerned must take a number of steps. These include the following. The lead authority must:

  • co-ordinate the discharge of duties by the authorities in dispute
  • take steps to obtain relevant information from those authorities
  • disclose relevant information to those authorities.

21.63          Authorities in dispute must:

  • take all reasonable steps to resolve the dispute between themselves
  • co-operate with each other in the discharge of their duties

21.64          Each authority in dispute must:

  • engage in constructive dialogue with other authorities to bring about a speedy resolution
  • comply with any reasonable request made by the lead authority to supply information

21.65     The regulations specify the requisite contents of a dispute referral as follows. When a dispute is referred, the following must be provided:

  • a letter signed by the lead authority stating that the dispute is being referred and identifying the provision of the Act which the dispute is about
  • a statement of the facts
  • copies of related correspondence

21.66          The statement of facts must include:

  • details of the needs of the individual to whom the dispute relates
  • which authority, if any, has met those needs, how they have been met and the relevant statutory provision
  • any relevant steps taken in relation to the individual
  • an explanation of the nature of the dispute
  • details of the individual’s place of residence and any former relevant residence . chronology of events leading up to the referral . details of sfeps authorities have taken to resolve dispute
  • where the individual’s mental capacity is relevant, relevant supporting information

21.67          The authorities in dispute may make legal submissions and if they do, they must send a copy to the other authorities in dispute, and provide evidence that they have done so.

21.68          The Responsible Person (for example, Minister or Northern lreland Department) to whom the dispute has been referred must:

  • consult other responsible persons (for example, Ministers or Northern lreland Department) in determining the dispute
  • notify those responsible persons of their determination.’

Financial adjustments between local authorities (s.41)

(1)     This section applies where—

(a)     a local authority has been meeting an adult’s needs for care and support, but

(b)     it transpires (whether following the determination of a dispute under section 40 or otherwise) that the adult was, for some or all of the time that the authority has been meeting the adult’s needs, ordinarily resident in the area of another local authority.

(2)     This section also applies where—

(a)     a local authority has been meeting a carer’s needs for support, but

(b)     it transpires (whether following the determination of a dispute under section 40 or otherwise) that the adult needing care was, for some or all of the time that the authority has been meeting the carer’s needs, ordinarily resident in the area of another local authority.

(3)     The local authority concerned may recover from the other local authority the amount of any payments it made towards meeting the needs in question at a time when the other local authority was instead liable to meet them under section 18 or 20(1) (as the case may be).

(4)     Subsection (3) does not apply to payments which are the subject of a deferred payment agreement entered into by the local authority in question, unless it agrees with the other local authority to assign its rights and obligations under the deferred payment agreement to that other authority.

(5)     Any period during which a local authority was meeting the needs in question under section 19 or 20(6) is to be disregarded for the purposes of this section.

Commentary

Enquiry by local authority (s.42)

(1)     This section applies where a local authority has reasonable cause to suspect that an adult in its area (whether or not ordinarily resident there)—

(a)     has needs for care and support (whether or not the authority is meeting any of those needs),

(b)     is experiencing, or is at risk of, abuse or neglect, and

(c)     as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it.

(2)     The local authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case (whether under this Part or otherwise) and, if so, what and by whom.

(3)     “Abuse” includes financial abuse; and for that purpose “financial abuse” includes—

(a)     having money or other property stolen,

(b)     being defrauded,

(c)     being put under pressure in relation to money or other property, and

(d)     having money or other property misused.

Commentary 

Safeguarding Adults Boards (s.43)

(1)     Each local authority must establish a Safeguarding Adults Board (an “SAB”) for its area.

(2)     The objective of an SAB is to help and protect adults in its area in cases of the kind described in section 42(1).

(3)     The way in which an SAB must seek to achieve its objective is by co-ordinating and ensuring the effectiveness of what each of its members does.

(4)     An SAB may do anything which appears to it to be necessary or desirable for the purpose of achieving its objective.

(5)     Schedule 2 (which includes provision about the membership, funding and other resources, strategy and annual report of an SAB) has effect.

(6)     Where two or more local authorities exercise their respective duties under subsection (1) by establishing an SAB for their combined area—

(a)     a reference in this section, section 44 or Schedule 2 to the authority establishing the SAB is to be read as a reference to the authorities establishing it, and

(b)     a reference in this section, that section or that Schedule to the SAB’s area is to be read as a reference to the combined area.

Commentary

 

Temporary duty on local authority (s.48)

(1)     This section applies where a person registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008 (a “registered care provider”) in respect of the carrying on of a regulated activity (within the meaning of that Part) becomes unable to carry on that activity because of business failure.

(2)     A local authority must for so long as it considers necessary (and in so far as it is not already required to do so) meet those of an adult’s needs for care and support and those of a carer’s needs for support which were, immediately before the registered care provider became unable to carry on the regulated activity, being met by the carrying on of that activity in the authority’s area by the provider.

(3)     A local authority is accordingly required to meet needs under subsection (2) regardless of—

(a)     whether the relevant adult is ordinarily resident in its area;

(b)     whether the authority has carried out a needs assessment, a carer’s assessment or a financial assessment;

(c)     whether any of the needs meet the eligibility criteria.

(4)     Where a local authority is meeting needs under subsection (2), it is not required to carry out a needs assessment, a carer’s assessment or a financial assessment or to determine whether any of the needs meet the eligibility criteria.

(5)     A local authority may make a charge for meeting needs under subsection (2) (except in so far as doing so involves the provision of information or advice); and a charge under this subsection may cover only the cost that the local authority incurs in meeting the needs to which the charge applies.

(6)     Subsection (5) does not apply if section 49 (cross-border cases) applies (see subsection (3) of that section).

(7)     If the relevant adult is not ordinarily resident in the area of the local authority which is required to meet needs under subsection (2), that authority—

(a)     must, in meeting needs under that subsection which were being met under arrangements made by another local authority, co-operate with that authority (in so far as it is not already required to do so by section 6);

(b)     must, in meeting needs under that subsection which were being met under arrangements all or part of the cost of which was paid for by another local authority by means of direct payments, co-operate with that authority (in so far as it is not already required to do so by section 6);

(c)     may recover from the other local authority mentioned in paragraph (a) or (b) (as the case may be) the cost it incurs in meeting those of the adult’s or carer’s needs referred to in the paragraph in question.

(8)     Any dispute between local authorities about the application of this section is to be determined under section 40 as if it were a dispute of the type mentioned in subsection (1) of that section.

(9)     “The relevant adult” means—

(a)     in a case involving an adult’s needs for care and support, that adult;

(b)     in a case involving a carer’s needs for support, the adult needing care.

Commentary

Section 48: cross-border cases (s.49)

(1)     This section applies where, in a case within section 48, immediately before the registered care provider became unable to carry on the regulated activity, some or all of the adult’s needs for care and support or the carer’s needs for support were being met by the carrying on of that activity by the provider under arrangements made—

(a)     by a local authority in Wales discharging its duty under section 35 or 40, or exercising its power under section 36 or 45, of the Social Services and Well-being (Wales) Act 2014,

(b)     by a local authority in Scotland discharging its duty under section 12 or 13A of the Social Work (Scotland) Act 1968 or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003, or

(c)     by a Health and Social Care trust under Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 or section 2 of the Carers and Direct Payments Act (Northern Ireland) 2002.

(2)     This section also applies where, in a case within section 48—

(a)     immediately before the registered care provider became unable to carry on the regulated activity, some or all of the adult’s needs for care and support or the carer’s needs for support were being met by the carrying on of that activity by the provider, and

(b)     all or part of the cost of the accommodation or other services provided by the provider to meet those needs was paid for by means of direct payments made—

(i)       under section 50 or 52 of the Social Services and Well-being (Wales) Act 2014,

(ii)      as a result of a choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013, or

(iii)     by virtue of section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002.

(3)     The local authority which is required to meet needs under section 48(2)—

(a)     must, in meeting needs under section 48(2) which were being met by the authority which made the arrangements referred to in subsection (1), co-operate with that authority;

(b)     must, in meeting needs under section 48(2) which were being met by the provision of accommodation or other services all or part of the cost of which was paid for by an authority by means of direct payments as referred to in subsection (2), co-operate with that authority;

(c)     may recover from the authority referred to in paragraph (a) or (b) (as the case may be) the cost it incurs in meeting those of the adult’s or carer’s needs referred to in the paragraph in question;

(d)     may recover from the adult or carer the cost it incurs in meeting those of the adult’s or carer’s needs other than those referred to in paragraph (a) or (b) (as the case may be).

(4)     Any dispute between a local authority and a local authority in Wales, a local authority in Scotland or a Health and Social Care trust about the application of section 48 or of this section is to be resolved in accordance with paragraph 5 of Schedule 1.

(5)     “Local authority in Wales” and “local authority in Scotland” each have the meaning given in paragraph 12 of Schedule 1.

(6)     The references in paragraphs (a) and (b) of subsection (3) to an authority are references to a local authority in Wales, a local authority in Scotland or a Health and Social Care trust (as the case may be).

Commentary

Sections 48 to 51: supplementary (s.52)

(1)     An authority becomes subject to the duty under section 48(2), 50(3) or 51(3) as soon as it becomes aware of the business failure.

(2)     Section 8 (how to meet needs) applies to meeting needs under section 48(2) as it applies to meeting needs under section 18.

(3)     Section 34 of the Social Services and Well-being (Wales) Act 2014 (how to meet needs) applies to meeting needs under section 50(3) as it applies to meeting needs under section 35 of that Act.

(4)     In deciding how to meet an adult’s needs for care and support under section 48(2), 50(3) or 51(3), an authority must involve—

(a)     the adult,

(b)     any carer that the adult has, and

(c)     any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.

(5)     In deciding how to meet a carer’s needs for support under section 48(2), 50(3) or 51(3), an authority must involve—

(a)     the carer, and

(b)     any person whom the carer asks the authority to involve.

(6)     In carrying out the duty under subsection (4)(a) or (5)(a), an authority must take all reasonable steps to reach agreement with the adult or carer about how it should meet the needs in question.

(7)     Sections 21 to 23 (exceptions to duty to meet needs) apply to meeting needs under section 48(2) as they apply to meeting needs under section 18.

(8)     Sections 46 to 49 of the Social Services and Well-being (Wales) Act 2014 (exceptions to, and restrictions on, duty to meet needs) apply to meeting needs under section 50(3) as they apply to meeting needs under section 35 of that Act.

(9)     Where an adult whose case comes within section 48 is being provided with NHS continuing healthcare under arrangements made by a clinical commissioning group no part of whose area is in the local authority’s area, the group is to be treated as a relevant partner of the authority for the purposes of sections 6 and 7.

(10)   “NHS continuing healthcare” is to be construed in accordance with standing rules under section 6E of the National Health Service Act 2006.

(11)   Where a local authority considers it necessary to do so for the purpose of carrying out its duty under section 48(2), it may request the registered care provider, or such other person involved in the provider’s business as it considers appropriate, to provide it with specified information.

(12)   Regulations must make provision as to the interpretation for the purposes of sections 48, 50 and 51 and this section of references to business failure or to being unable to do something because of business failure; and the regulations may, in particular, specify circumstances in which a person is to be treated as unable to do something because of business failure.

(13)   Pending the commencement of Part 4 of the Social Services and Well-being (Wales) Act 2014—

(a)     a reference in section 49 or 51 to making arrangements to meet needs under section 35 or 36 of that Act is to be read as a reference to making arrangements or providing services under—

(i)       Part 3 of the National Assistance Act 1948,

(ii)      section 45 of the Health Services and Public Health Act 1968,

(iii)     section 117 of the Mental Health Act 1983, or

(iv)     Schedule 15 to the National Health Service (Wales) Act 2006;

(b)     a reference in section 49 or 51 to making arrangements to meet needs under section 40 or 45 of that Act is to be read as a reference to providing services as referred to in section 2 of the Carers and Disabled Children Act 2000;

(c)     a reference in section 49 or 51 to making direct payments under section 50 or 52 of that Act is to be read as a reference to making direct payments by virtue of section 57 of the Health and Social Care Act 2001;

(d)     subsection (8) is to be read as if there were substituted for it—

“(8)Sections 21(1A) and (8) and 29(6) of the National Assistance Act 1948 apply to meeting needs under section 50(3) as they apply to the exercise of functions under sections 21 and 29 of that Act by a local authority in Wales (within the meaning given in paragraph 12 of Schedule 1).”

(14)   Pending the commencement of section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013—

(a)     sections 49(2)(b)(ii) and 50(2)(b)(ii) are to be read as if there were substituted for each of them—

“(ii) under section 12B of the Social Work (Scotland) Act 1968,”, and

(b)     section 51(2)(b)(iii) is to be read as if there were substituted for it—

“(iii) under section 12B of the Social Work (Scotland) Act 1968.”.

Commentary 

Part 1 appeals (s.72)

(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.

Commentary

Cross-border placements (Schedule 1) 

Commentary

Safeguarding Adults Boards (Schedule 2)

Placements from Scotland to England, Wales or Northern Ireland

3(1)             Where a local authority in Scotland is discharging its duty under section 12 or 13A of the Social Work (Scotland) Act 1968 or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 by securing the provision of accommodation in England, the adult in question is not to be treated for the purposes of this Part of this Act as ordinarily resident anywhere in England.

(2)     Where a local authority in Scotland is discharging its duty under a provision referred to in sub-paragraph (1) by securing the provision of accommodation in Wales, the adult in question is not to be treated for the purposes of the Social Services and Well-being (Wales) Act 2014 as ordinarily resident anywhere in Wales.

(3)     Where a local authority in Scotland is discharging its duty under a provision referred to in sub-paragraph (1) by securing the provision of accommodation in Northern Ireland, no duty under the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Social Care (Reform) Act (Northern Ireland) 2009 to provide or secure the provision of accommodation or other facilities applies in the case of the adult in question.

(4)     In section 5 of the Community Care and Health (Scotland) Act 2002 (local authority arrangements for residential accommodation outside Scotland)—

(a)     in subsection (1), after “the 1968 Act” insert “ or under section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (care and support) ”,

(b)     in subsection (2), for “such arrangements” substitute “ persons for whom such arrangements are made ”, and

(c)     for subsections (5) and (6) substitute—

“(5)In subsections (1) and (3) above, “appropriate establishment” means an establishment of such description or conforming to such requirements as may be specified in regulations under subsection (1).”

(5)     Regulations may make further provision in relation to arrangements of the kind referred to in this paragraph.

Dispute resolution

Any dispute about the application of any of paragraphs 1 to 4 to an adult’s case is to be determined in accordance with this paragraph.

(2)     If the dispute is between a local authority in England and a local authority in Wales, it is to be determined by the Secretary of State or the Welsh Ministers.

(3)     If the dispute is between a local authority in England and a local authority in Scotland, it is to be determined by the Secretary of State or the Scottish Ministers.

(4)     If the dispute is between a local authority in England and a Health and Social Care trust, it is to be determined by the Secretary of State or the Northern Ireland Department.

(5)     If the dispute is between a local authority in Wales and a local authority in Scotland, it is to be determined by the Welsh Ministers or the Scottish Ministers.

(6)     If the dispute is between a local authority in Wales and a Health and Social Care trust, it is to be determined by the Welsh Ministers or the Northern Ireland Department.

(7)     If the dispute is between a local authority in Scotland and a Health and Social Care trust, it is to be determined by the Scottish Ministers or the Northern Ireland Department.

(8)     In Article 36 of the Health and Personal Social Services (Northern Ireland) Order 1972, after paragraph (2) insert—

“(2A) Any question under this Order as to the ordinary residence of a person is to be determined by the Department.”

(9)     Regulations must make provision for determining which of the persons concerned is to determine the dispute; and the regulations may, in particular, provide for the dispute to be determined by whichever of them they agree is to do so.

(10)   Regulations may make provision for the determination of disputes between more than two parties.

(11)   Regulations may make further provision about determination of disputes under this paragraph or under regulations under sub-paragraph (10); the regulations may, for example, include—

(a)     provision requiring parties to a dispute to take specified steps before referring the dispute for determination under this paragraph;

(b)     provision about the procedure for referring the dispute under this paragraph.

Financial adjustments

6(1)   This paragraph applies where—

(a)     an adult has been provided with accommodation in England, Wales, Scotland or Northern Ireland, and

(b)     it transpires (whether following the determination of a dispute under paragraph 5 or otherwise) that an authority in another of the territories was, for some or all of the time that the accommodation was being provided, liable to provide the adult with accommodation.

(2)     The authority which made the arrangements may recover from the authority in the other territory the amount of any payments it made towards the making of the arrangements at a time when the other authority was liable to provide the adult with accommodation.

(3)     A reference to an authority is a reference to a local authority in England, Wales or Scotland or a Health and Social Care trust in Northern Ireland.

Provision of NHS accommodation not to affect deemed ordinary residence etc.

8(1)   In a case where, as a result of this Schedule, an adult is treated as ordinarily resident in an area in England, Wales or Northern Ireland (as the case may be), the adult does not cease to be so treated merely because the adult is provided with NHS accommodation.

(2)     In a case where, as a result of this Schedule, an adult is not treated as ordinarily resident anywhere in England or Wales (as the case may be), the adult continues not to be so treated even if the adult is provided with NHS accommodation.

(3)     In a case where, as a result of this Schedule, no duty under a relevant enactment applies, the duty does not apply merely because the adult in question is provided with NHS accommodation; and for this purpose “relevant enactment” means—

(a)     Part 2 of the Social Work (Scotland) Act 1968,

(b)     sections 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003,

(c)     the Health and Personal Social Services (Northern Ireland) Order 1972, or

(d)     the Health and Social Care (Reform) Act (Northern Ireland) 2009.

(4)     In a case where, as a result of paragraph 2(2), (4) or (7), an adult is treated as remaining within, or as remaining outside but ordinarily resident in, an area in Wales, the adult does not cease to be so treated merely because the adult is provided with NHS accommodation.

Direct payments

9(1)   Regulations may provide for this Schedule to apply, with such modifications as may be specified, to a case where accommodation in England, Wales, Scotland or Northern Ireland is provided for an adult by means of direct payments made by an authority in another of the territories.

(2)     The reference in sub-paragraph (1) to direct payments accordingly includes a reference to direct payments made—

(a)     under section 50 or 52 of the Social Services and Well-being (Wales) Act 2014,

(b)     as a result of a choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013, or

(c)     by virtue of section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002.

Particular types of accommodation

10(1) Regulations may provide for this Schedule to apply, with such modifications as may be specified, to a case where—

(a)     an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in the regulations,

(b)     the adult is living in accommodation in England, Wales, Scotland or Northern Ireland that is of a type so specified, and

(c)     the adult’s needs for care and support are being met by an authority in another of the territories providing or arranging for the provision of services other than the accommodation.

(2)     In section 5 of the Community Care and Health (Scotland) Act 2002 (the title to which becomes “ Local authority arrangements for residential accommodation etc. outwith Scotland ”), in subsection (1), at the end insert “ or for the provision in England and Wales or in Northern Ireland of a service or facility of such other description as may be specified in the regulations ”.

Interpretation

12(1) This paragraph applies for the purposes of this Schedule.

(2)     “Accommodation in England” means accommodation in England of a type specified in regulations under section 39 but not of a type specified in regulations under this paragraph.

(3)     “Accommodation in Wales” means accommodation in Wales of a type specified in regulations under section 194 of the Social Services and Well-being (Wales) Act 2014 but not of a type specified in regulations under this paragraph.

(4)     “Accommodation in Scotland” means residential accommodation in Scotland of a type which may be provided under or by virtue of section 12 or 13A of the Social Work (Scotland) Act 1968, or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003, but not of a type specified in regulations under this paragraph.

(5)     “Accommodation in Northern Ireland” means residential or other accommodation in Northern Ireland of a type which may be provided under Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972.

(6)     “Local authority in England” means a local authority for the purposes of this Part.

(7)     “Local authority in Wales” means a local authority for the purposes of the Social Services and Well-being (Wales) Act 2014.

(8)     “Local authority in Scotland” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994.

(9)     “The Northern Ireland Department” means the Department of Health, Social Services and Public Safety in Northern Ireland.

(10)   “NHS accommodation” has the meaning given in section 39(6).

The Care and Support (Cross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014

Introduction 

Schedule 1 to the Care Act 2014 (“the Act”) makes provision to ensure that where a local authority in England, Wales or Scotland, or a Health and Social Care trust in Northern Ireland (“an HSC trust”) places an adult in residential accommodation in another of those territories, in general, this does not result in the transfer of that authority’s responsibility for that adult. The relevant provisions are to be found in paragraphs 1 to 4 of Schedule 1.

Explanatory Memorandum

The Explanatory Memorandum to the Care and Support (Cross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014 states,

2.      Purpose of the instrument

2.1     The instrument makes provision about the resolution of disputes between local authorities in England, Wales and Scotland, and Health and Social Care trusts (“trusts”) in Northern Ireland about the application of certain provisions of the Care Act 2014 (“the Act”). Certain of those provisions seek to ensure that, in general, where a person is placed by a local authority or trust in residential accommodation in another UK country this does not result in the transfer of responsibility for that person. The rest of those provisions impose duties on local authorities in England and Wales and on trusts to meet care and support needs of adults or support needs of carers, in circumstances where care providers are unable to carry on because of “business failure”.

  1. Legislative Context – Schedule 1 to the Act (cross-border placements)

4.1     Local authorities in England, Wales and Scotland, and trusts in Northern Ireland are able or, in some cases will be able as a result of legislative changes, to make arrangements (“cross-border arrangements”) for the provision of residential accommodation in another of those countries to meet people’s care and support needs. In the paragraphs below, the country in which the placing authority or trust is situated is referred to as “the first country” and the country in which the person is placed is referred to as “the second country”.

4.2     Cross-border arrangements may result in a person acquiring ordinary residence in the second country or in the local authority or trust in that country otherwise becoming responsible for that person. Schedule 1 to the Act makes provision to ensure that in these circumstances, in general, an authority or trust’s responsibility for a person does not transfer to an authority or trust in the second country. This is achieved by treating a person as ordinarily resident in the first country and not in the second country, or by disapplying duties which would otherwise have arisen on the part of the authority or trust in the second country.

The relevant provisions are to be found in paragraphs 1 to 4 of Schedule 1.

4.3     Paragraph 5 of Schedule 1 to the Act makes provision about the resolution of disputes about the application of any of paragraphs 1 to 4 of the Schedule to an adult’s case, for example provision for certain persons (the Secretary of State, the Welsh Ministers, the Scottish Ministers or the Department of Health, Social Services and Public Safety in Northern Ireland (“DH SSPS”)) to determine a dispute. It requires regulations to make provision for determining which of the persons concerned is to determine the dispute and enables regulations to make further provision about the determination of disputes.

4.9     The instrument makes provision in relation to the resolution of disputes between authorities and trusts about the application of paragraphs 1 to 4 of Schedule 1, or of sections 48 to 51 of the Act (save for disputes between English local authorities about the application of section 48 which are not dealt with in this instrument).

  1. Territorial Extent and Application

5.1     This instrument applies to all of the United Kingdom.

  1. Policy background

7.1     People in need of residential accommodation may wish to move to a different territory of the UK from that in which they reside, for example, to be near their friends and family. Such a move may improve their well-being. Schedule 1 to the Act sets out certain principles which seek to support cross-border residential care placements by ensuring that, generally, where a local authority, or a trust in Northern Ireland, places someone in residential accommodation across a border within the UK, this does not result in a transfer of the authority’s responsibility for the individual concerned.

7.3     If authorities have regard to and apply the suggested processes and procedures outlined in guidance, work together in a spirit of

reciprocity and co-operation and communicate effectively in order to ensure matters go smoothly, there should be no need for disputes to arise.

7.4     However, in the event that disputes do arise, it is important to have an agreed process for addressing and resolving them.

7.5     The instrument makes provision for dispute resolution, for example to make provision as to which authority is to resolve a dispute, specified steps to be taken before referring a dispute for determination and the documents to be supplied with the referral of a dispute.

7.6     Broadly, this mirrors the type of provision which applies in relation to the determination of disputes about ordinary residence between local authorities in England which have so far worked well and stood the test of time, and it is believed that they provide an effective framework for the resolution of disputes between authorities.

7.7     Currently, there are some mechanisms for the determination of cross-border disputes in the context of care services generally.

Section 32(3) of the National Assistance Act 1948 (the 1948 Act) provides for ordinary residence disputes relating to care services under Part 3 of the 1948 Act to be determined by the Secretary of State or the Welsh Ministers. Statutory arrangements under section 32(4) of the 1948 Act set out the circumstances in

which the Secretary of State or Welsh Ministers will determine disputes. For cross-border disputes between English and Scottish local authorities, the position is governed by section 32 of

the 1948 Act in relation to England and by section 86 of the Social Work (Scotland) Act 1968 (the 1968 Act) in relation to Scotland. A Memorandum of Understanding sets out the circumstances in which the Secretary of State or Scottish Ministers will determine a cross-border dispute. However, insofar as the instrument provides for a dispute resolution procedure in relation to new deeming provisions concerning cross-border residential care placements

specifically as well as business failure of care providers, it represents policy-making in new areas. The provisions on cross-border placements are themselves new save for certain provisions deeming the position as regards “ordinary residence” as between England and Wales which are reflected in the 1948 Act. The provisions on business failure are also new insofar as they impose explicit duties on local authorities to meet needs in business failure situations (although existing functions of authorities would generally extend to meeting needs in

such situations).

9.4     The Scottish Government and DHSSPS in Northern Ireland will provide local authorities and trusts with guidance in due course,

building on the guidance that is statutory for England.

  1. Contact

Niall Fry at the Department of Health Tel: (020) 7210 5260 or email:

niall.fry@dh.gsi.gov.uk can answer any queries regarding the instrument.’

The Care and Support (Cross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014 state, 

2.      Responsibility for determination of disputes

(1)     The Responsible Person which is to determine a dispute between authorities is to be determined as follows.

(2)     Where the authorities which are parties to the dispute (“the authorities in dispute”) include a local authority in England, and the adult or carer to whom the dispute relates (“the relevant person”) is living in England as at the date the dispute is referred (“the relevant date”), the dispute is to be determined by the Secretary of State.

(3)     Where the authorities in dispute include a local authority in Wales, and the relevant person is living in Wales as at the relevant date, the dispute is to be determined by the Welsh Ministers.

(4)     Where the authorities in dispute include a local authority in Scotland, and the relevant person is living in Scotland as at the relevant date, the dispute is to be determined by the Scottish Ministers.

(5)     Where the authorities in dispute include an HSC trust, and the relevant person is living in Northern Ireland as at the relevant date, the dispute is to be determined by the Northern Ireland Department.

(6)     In any other case, the dispute is to be determined by whichever of the persons who are Responsible Persons in relation to the authorities in dispute, those persons agree is to do so.

  1. Lead authority in relation to disputes

(1)     For the purposes of these Regulations, the lead authority in relation to a dispute is the authority in whose area the adult or carer to whom the dispute relates is living as at the date on which the dispute arises.

(2)     If that authority (“A”) is not one of the authorities which are parties to the dispute—

(a)     those authorities must, without delay, bring to A’s attention A’s duties under these Regulations; and

(b)     A is not under those duties until the date on which A is aware of, or could reasonably be expected to have been aware of, those duties.

  1. Notification etc

(1)     This regulation applies where a referral is—

(a)     made to a Responsible Person by authorities in accordance with regulation 8; or

(b)     sent to a Responsible Person by another Responsible Person pursuant to paragraph (4).

(2)     In the following provisions of this regulation, the Responsible Person to whom the referral is made or sent is referred to as the “Relevant Responsible Person”.

(3)     If the dispute falls to be determined by the Relevant Responsible Person, that person must—

(a)     in determining the dispute, consult all persons who are Responsible Persons in relation to the authorities which are parties to the dispute (“the authorities in dispute”); and

(b)     prior to notifying those authorities of the outcome

of the determination, notify those Responsible Persons of that outcome.

(4)     If the dispute does not fall to be determined by the Relevant                               Responsible Person, that person must—

(a)     as soon as reasonably practicable after receiving the referral, send the referral to the Responsible Person by whom it appears to the Relevant Responsible Person the dispute falls to be determined or, in a case within regulation 2(6), to all persons who are Responsible Persons in relation to the authorities in dispute; and

(b)     notify the authorities in dispute of the action taken pursuant to sub-paragraph (a).

(5)     For the purposes of this regulation, a reference to a dispute falling, or appearing to fall, to be determined by a Responsible Person (however expressed) is a reference to that dispute so falling, or appearing to fall, to be determined pursuant to regulation 2.

  1. Responsibility for meeting needs pending determination of dispute etc

(1)     The authorities which are parties to a dispute must not allow the   existence of the dispute to prevent, delay, interrupt or otherwise         adversely affect the meeting of the needs of the adult (“the adult”) or carer to whom the dispute relates.

(2)     This paragraph applies where a dispute concerns

(a)     section 48(2), 50(3) or 51(3) of the Act (temporary duty to meet needs); or

(b)     any of paragraphs 1 to 4 of Schedule 1.

(3)     Where paragraph (2) applies

(a)     the authority which is meeting any needs for accommodation of the adult on the date on which the dispute arises must continue to meet those needs; and

(b)     if no authority is meeting those needs as at that date, the authority in whose area the adult is living as at that date must do so from that date.

(4)     The duty under paragraph (3) must be discharged until the dispute in question is resolved.

(5)     The meeting of an adult’s needs by an authority pursuant to paragraph (3) does not affect the liability of that authority or any other authority for the meeting of those needs in respect of the period during which those needs are met.

  1. Steps to be taken prior to referral of a dispute including steps to try to resolve a dispute

(1)     The authorities which are parties to a dispute (“authorities in dispute”) must, prior to the referral of the dispute, take the steps specified in this regulation.

(2)     As soon as reasonably practicable after the date on which the dispute arises—

(a)     the authority which is the lead authority in relation to the dispute must identify all the authorities which are parties to the dispute and co-ordinate discussions between those authorities in an attempt to resolve the dispute; and

(b)     each of the authorities in dispute must—

(i)       nominate an individual who will act as the point of

contact within that authority in relation to the dispute; and

(ii)      provide the other authorities in dispute with the contact details of that individual.

(3)     The lead authority must—

(a)     co-ordinate the discharge, by the authorities in dispute, of their duties under this regulation;

(b)     take steps to obtain, from the other authorities in dispute, information which may be relevant to the determination of the dispute;

(c)     disclose that information to the other authorities in dispute (if any); and

(d)     disclose to the other authorities in dispute any information the lead authority itself holds that may help to resolve the dispute.

(4)     The authorities in dispute must—

(a)     take all reasonable steps to resolve the dispute between themselves; and

(b)     co-operate with each other in the discharge of their duties under this regulation.

(5)     Each of the authorities in dispute must—

(a)     engage in a constructive dialogue with the other authorities in dispute, with a view to bringing about the speedy resolution of the dispute;

(b)     comply, without delay, with any reasonable request for relevant information made by the lead authority; and

(c)     keep the other authorities in dispute informed of information which appears to it to be relevant to the determination of the dispute.

(6)     The lead authority in relation to the dispute must provide to the adult or       carer to whom the dispute relates (“the relevant person”), or to the relevant person’s representatives, such information as appears to it to be appropriate about progress in resolving the dispute.

  1. Contents of referral etc

(1)     Where a referral is made in accordance with regulation 8, the authority which is the lead authority in relation to the dispute which is the subject of the referral, must send a copy of the referral to all persons who are Responsible Persons in          relation to the authorities which are parties to the dispute.

(2)     Subject to paragraphs (8) and (9), the referral must include the following documents

(a)     a letter signed by the lead authority stating that the dispute           is being referred and identifying the provision of the Act, the           application of which the dispute is about;

(b)     a statement of facts signed by each of the authorities which           are parties to the dispute (“the authorities in dispute”) which           includes the information specified in paragraph (3); and

(c)     copies of all correspondence between the authorities in              dispute which relates to the dispute.

(3)     The information referred to in paragraph (2)(b) is—

(a)     an explanation of the nature of the dispute;

(b)     a chronology of the events leading up to the referral of the     dispute, including the date on which the dispute arose;

(c)     details of the needs of the adult (“the relevant adult”) or carer (“the relevant carer”) to whom the dispute relates since the beginning    of the period to which the dispute relates;

(d)     a statement as to which authority has met those needs since then, how those needs have been met and the statutory provisions under which they have been met;

(e)     a statement as to any other steps taken by the authorities in dispute in relation to the relevant adult or the relevant carer and which may be relevant to the dispute;

(f)      details of the relevant adult’s place of residence, and of any former places of residence which are relevant to the dispute;

(g)     in a case where the relevant adult’s capacity to decide where to live is relevant to the dispute, either—

(i)       a statement that the authorities in dispute agree that the adult has, or lacks, such capacity; or

(ii)      information which appears to any of the authorities in dispute to be relevant to the question of whether the adult has, or lacks such capacity;

(h)     details of the steps that the authorities in dispute have taken to resolve the dispute between themselves; and

(i)       any other information which appears to any of the authorities in dispute to be relevant to the determination of the dispute.

(4)     The authorities in dispute may submit legal arguments they are relying on in relation to the dispute provided that this is done within 14 days of the date on which the documents referred to in paragraph (2) are sent.

(5)     If an authority submits legal arguments, it must—

(a)     send a copy of those arguments to the other authorities in                 dispute; and

(b)     provide evidence to the Responsible Person determining the dispute that it has done so.

(6)     If the Responsible Person determining the dispute asks any of the authorities in dispute to provide further information, that authority must comply without delay.

(7)     For the purposes of this regulation—

(a)     a reference to lacking capacity (however expressed) is a reference to—

(i)       lacking capacity within the meaning of section 2 of

the Mental Capacity Act 2005(a);

(ii)      being incapable within the meaning of section 1 of the Adults with Incapacity (Scotland) Act 2000(b); or

(iii)     being incapable by reason of mental disorder within

the meaning of Article 3(1) of the Mental Health (Northern Ireland) Order 1986(c);

(b)     a reference to having capacity (however expressed) is a reference to not lacking capacity.

(8)     Where the dispute is solely about the application of section 49(3)(c), 50(4)(c) or 51(4)(c) of the Act (recovery of costs), paragraph (3) is to be read as if sub-paragraphs (e), (f) and (g) were omitted and as if after sub-paragraph (i) there was inserted—

“(j)     information as to the costs being sought to be recovered and a breakdown of those costs.”

(9)     Where the dispute is solely about the application of section 49(3)(a) or (b), 50(4)(a) or (b) or 51(4)(a) or (b) of the Act (duty to co-operate), paragraph (3) is to be read as if sub-paragraphs (c) to (g) were omitted.

Stage at which dispute must be referred

  1. If the authorities which are parties to a dispute cannot resolve the dispute between themselves within four months of the date on    which it arose, they must refer it for determination to the           appropriate Responsible Person or, in a case within regulation 2(6), to all persons who are Responsible Persons in relation to the authorities in dispute.’

Recent cases

In Davey, R (on the application of) v Oxfordshire County Council & Ors [2017] EWCA, Lord Justice Bean made the following observations about the Care Act 2014, 

‘The Care Act 2014 was enacted following a 2011 report of the Law Commission (at that time chaired by Sir James Munby), Adult Social Care (Law Com No. 326). The most important section of the Act is Section 1, which provides:-

“Promoting individual well-being

  1. (1) The general duty of a local authority, in exercising a function under this Part in the case of an individual, is to promote that individual’s well-being.

(2) “Well-being”, in relation to an individual, means that individual’s well-being so far as relating to any of the following-

(a) personal dignity (including treatment of the individual with respect);

(b) physical and mental health and emotional well-being;

(c) protection from abuse and neglect;

(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);

(e) participation in work, education, training or recreation;

(f) social and economic well-being;

(g) domestic, family and personal relationships;

(h) suitability of living accommodation;

(i) the individual’s contribution to society.

(3) In exercising a function under this Part in the case of an individual, a local authority must have regard to the following matters in particular:–

(a) the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being;

(b)the individual’s views, wishes, feelings and beliefs;

(c) the importance of preventing or delaying the development of needs for care and support or needs for support and the importance of reducing needs of either kind that already exist;

(d) the need to ensure that decisions about the individual are made having regard to all the individual’s circumstances (and are not based only on the individual’s age or appearance or any condition of the individual’s or aspect of the individual’s behaviour which might lead others to make unjustified assumptions about the individual’s well-being);

(e) the importance of the individual participating as fully as possible in decisions relating to the exercise of the function concerned and being provided with the information and support necessary to enable the individual to participate;

(f) the importance of achieving a balance between the individual’s well-being and that of any friends or relatives who are involved in caring for the individual;

(g) the need to protect people from abuse and neglect;

(h) the need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.”

The judge accepted the submission of Mr Burton for the Claimant that the duty under s 1(1) is distinct from the duty under s 1(3); and that s 1(1) and (2) impose a distinct duty upon the Defendant, in each individual case, to promote the individual’s wellbeing including physical and mental health and emotional wellbeing. However, the primary focus of the claim before the judge, and before us, has been Section 1(3)(d).

Section 78 (1) of the 2014 Act requires local authorities, when exercising functions given to them by Part 1 of the Act, to follow general guidance issued by the Secretary of State. There is a single such document, Care and Support Statutory Guidance. It includes these paragraphs:-

“1.1 The core purpose of adult care and support is to help people to achieve the outcomes that matter to them in their life.

1.2 Local authorities must promote wellbeing when carrying out any of their care and support functions in respect of a person … it is a guiding principle that puts wellbeing at the heart of care and support……..

1.7 Promoting wellbeing involves actively seeking improvements in the aspects of wellbeing.”

Section 9 of the Act makes provision for needs assessments:

“Assessment of an adult’s needs for care and support

(1) Where it appears to a local authority that an adult may have needs for care and support, the authority must assess –

(a) whether the adult does have needs for care and support, and

(b) if the adult does, what those needs are.

(2) An assessment under subsection (1) is referred to in this Part as a “needs assessment”…….

(4) A needs assessment must include an assessment of –

(a) the impact of the adult’s needs for care and support on the matters specified in section 1(2),

(b) the outcomes that the adult wishes to achieve in day-to-day life, and

(c) whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes.”

The judge made the following observations on this sub-section with which I would agree. First, the assessment duty is a duty upon the local authority and the assessment under s 9(1)(a) and (b) is an objective assessment made by the local authority (usually acting through its social workers or occupational therapist). Secondly, under s 9(4), there is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes. On the other hand if, in the course of a needs assessment, the local authority does not assess the matters specified in s.9(4) (including the impact on well-being matters set out in s.1(2)), then there is a breach of the statutory duty.

Section 13 of the Act and the Care and Support (Eligibility Criteria) Regulations 2015 (SI 313 of 2015) make provision for eligibility criteria, set, for the first time, on a national basis. Where the local authority is satisfied that the adult has needs for care and support, it must determine whether any of the identified needs meet the eligibility criteria. Where at least some of those needs meet the criteria, the local authority must consider what could be done to meet those needs and whether the adult wants those needs to be met by the local authority.

Section 18 imposes a duty upon the local authority, having made a determination of the needs which are eligible under section 13, to meet the adult’s needs which meet the eligibility criteria, subject to a means test analysis.

Sections 24 to 26 make provision for care planning. Section 24 sets out the steps which the local authority must take following the needs assessment. Section 25 then prescribes the contents of a care and support plan. By s 25(3), the local authority must involve both the adult and any carer that the adult has in the preparation of a care and support plan. By s 25(5) it must take all reasonable steps to reach agreement with the adult for whom the plan is being prepared about how the local authority should meet the needs in question.

Section 26 deals with what should be contained within a personal budget and provides:

“(1) A personal budget for an adult is a statement which specifies –

(a) the cost to the local authority of meeting those of the adult’s needs which it is required or decides to meet as mentioned in section 24(1)

(b) the amount which, on the basis of the financial assessment, the adult must pay towards that cost, and

(c) if on that basis the local authority must itself pay towards the cost, the amount which it must pay”

As regards transparency and sufficiency in the personal budget, relevant parts of the Guidance include the following:

“11.25 The Act states that the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs. In establishing the ‘cost to the local authority’, consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget. To further aid the transparency principle, these cost assumptions should be shared with the person so they are aware of how their personal budget was established.”

Sections 31 to 33, and the Care and Support (Direct Payments) Regulations 2014 (SI 2871 of 2014), deal with direct payments. Direct payments are defined in s 31(1), which provides that s 31 applies where “…..:

(a) a personal budget for an adult specifies an amount which the local authority must pay towards the cost of meeting the needs to which the personal budget relates, and

(b) the adult requests the local authority to meet some or all of those needs by making payments to the adult or a person nominated by the adult.”’

The Care and Support (Disputes Between Local Authorities) Regulations 2014

Where two or more English social services authorities are in dispute over a person’s ordinary residence (either in respect of their responsibilities under the Care Act 2014 or under the Mental Health Act 1983 s.117), CA 2014 s.40 and 2014 regulations provide that the question is to be determined by the secretary of state. The relevant regulations are the Care and Support (Disputes Between Local Authorities) Regulations 2014 SI No 2829.

CA 2014 s39(8) and Sch 1 para 5 provide for regulations that detail the process for resolving cross-border ordinary disputes. In consequence, 2014 regulations – the Care and Support (Cross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014 SI No 2843 – have been issued, supplemented by brief guidance. They make clear that the responsible nation for determining such disputes is the one in which the individual is actually residing.

As with domestic ordinary residence disputes, the regulations and guidance require that authorities co-operate and co-ordinate their actions, exchange relevant information and provide appropriate statements to the dispute determining body. Above all, the regulations provide that authorities ‘must not allow the existence of the dispute to prevent, delay, interrupt or otherwise adversely affect the meeting of the needs of the adult. CA 2014, Sch 1, para 6, makes provision for the recovery of payments made by an authority where it subsequently transpires that the individual is the responsibility of another authority.

The Care and Support Statutory Guidance states,

‘Resolving ordinary residence and continuity of care disputes

19.76          In the majority of cases, determining ordinary residence should be straightforward. However, there will be occasions where a person’s residency status is more complicated to establish.

19.77          A question as to a person’s ordinary residence can only arise where 2 or more local authorities are in dispute about the place of ordinary residence of a person. In such a case, the authorities may apply for a determination to the Secretary of State or appointed person. Where the local authorities concerned are in agreement about a person’s ordinary residence, but the person is unhappy with the decision, the person would have to pursue this with the authorities concerned and could not apply to the Secretary of State or an appointed person for a determination.

19.78          The Care and Support (Disputes Between Local Authorities) Regulations 2014 (the regulations), set out the procedures local authorities must follow when disputes arise between local authorities regarding a person’s ordinary residence. When a dispute between 2 or more local authorities occurs, local authorities must take all reasonable steps to resolve the dispute between themselves. It is critical that the person does not go without the care they need, should local authorities be in dispute. The local authority that is meeting the needs of the adult or the carer on the date that the dispute arises, must continue to do so until the dispute is resolved. If no local authority is currently meeting the person’s needs, then the local authority where the person is living or is physically present must accept responsibility until the dispute is resolved. The local authority which has accepted provisional responsibility is referred to as the ‘the lead authority’.

19.79          The lead authority must identify all the authorities involved in the dispute and co-ordinate an ongoing dialogue between all parties involved. The parties involved must provide the lead authority with contact details of a named person in relation to the dispute. The lead authority must be responsible for the co-ordination of any information that may be relevant to the dispute and keep all parties informed of any developments that may be relevant to the dispute. The lead authority must also keep the person, or their carer if appropriate, fully informed of dispute in question and of progress regarding any resolution.

19.80          If, having taken appropriate legal advice and considered the position, and followed the procedure set out in the disputes regulations, the authorities are still unable to resolve a particular dispute, they must apply for a determination to the Secretary of State or appointed person. Applications for determinations must be submitted by the lead authority before or by the end of a period of 4 months from the date when the dispute arose. The provisional acceptance of responsibility by the lead authority will not influence any determination made by the Secretary of State.

Process for seeking a determination

19.81          The regulations place a duty on the parties involved in the dispute to provide specified information to the Secretary of State or appointed person. The lead local authority must make a request in writing to the Secretary of State or appointed person, together with a statement of facts and other documentation. The statement of facts must include certain specified information as set out in the regulations. Local authorities should endeavour to produce a statement of facts that is jointly agreed. If the parties cannot agree on particular information, they should make clear what information the parties say is agreed, what information the parties say is in dispute and, as regards the latter, what the parties’ respective versions of the facts are. Local authorities should ensure that all documents sent to the Secretary of State or appointed person are in an indexed paginated bundle. Copies of any further documents required will need to be added to the index for insertion into the bundle.

19.82          The Secretary of State or appointed person will not allow ordinary residence disputes to run on indefinitely once they have been referred for a determination. The Secretary of State – or appointed person – once satisfied that the parties have had adequate opportunity to make representations, will proceed to make a determination. Any local authority failing to have due regard to a determination by the Secretary of State or appointed person, would put itself at risk of a legal challenge by the resident or their representative or the other local authorities to the dispute.

19.83          Local authorities may wish to seek legal advice before making an application for a determination, although they are not required to do so. If legal advice is sought, local authorities may, in addition to the required documentation, provide a separate legal submission. Where legal submissions are included, these should be exchanged between the local authorities in dispute and evidence of this should be supplied to the Secretary of State. All applications for determinations by the Secretary of State should be sent to:

Department of Health
Social Care Oversight Team
3rd Floor
39 Victoria Street
Westminster
London
SW1H 0EU

19.84          If during a determination of the ordinary residence dispute by the Secretary of State or appointed person, a local authority in dispute is asked to provide further information to the Secretary of State or appointed person, that local authority must provide that information without delay.

19.85          If the local authorities involved in the dispute reach an agreement whilst the Secretary of State is considering the determination, they should notify the Department of Health at the above address. Both parties must confirm that the dispute has been resolved after which the determination will be closed down.

19.86          If a determination by the Secretary of State or an appointed person subsequently finds another local authority to be the authority of ordinary residence, the lead local authority may recover costs from the authority which should have been providing the relevant care and support.

19.87          Regardless of when the Secretary of State is asked to make a determination, it will be made in accordance with the law that was in force at the relevant date, in respect of which ordinary residence falls to be determined. Therefore, where ordinary residence is to be determined in respect of a period which falls before 1st April 2015, then the determination will be made in accordance with Part 3 of the National Assistance Act 1948 (the 1948 Act). If, in respect of a period on or after 1st April 2015, then the determination will be made in accordance with the Care Act. Any question as to a person’s ordinary residence arising under the 1948 Act which is to be determined by the Secretary of State on or after 1 April 2015 is to be determined in accordance with section 40 of the 2014 Act (disputes about ordinary residence) and the new dispute procedure under the Care Act is to be followed 77.

19.88          The Department of Health makes available anonymised copies of determinations it has made. Each case must be considered in light of its own particular facts, but past determinations may provide local authorities with useful guidance when faced with similar circumstances.

Financial adjustments between local authorities

19.89          Sometimes a local authority has been paying for a person’s care and support, but it later becomes apparent (for example as a result of an ordinary residence determination) that the person is in fact ordinarily resident elsewhere. In these circumstances the local authority which has been paying for that person’s care may reclaim the costs from the local authority where the person was ordinarily resident.

19.90          This can occur in cases where it is not clear initially where the person is ordinarily resident. In order to ensure that the individual does not experience any delay to their care due to uncertainty over their ordinary residence, local authorities should be able to recover any losses due to initial errors or delays in deciding where a person is ordinarily resident. This also extends to costs spent supporting the carer of the person whose ordinary residence was in dispute.’

DH Guidance 2013 – Resolving disputes about who is the responsible commissioner

The responsibility for patients who move across the borders of the UK nations, and disputes concerning such persons is outlined in paragraphs 51-70 of the DH Guidance ‘Who Pays? – Determining responsibility for payments to providers’ (August 2013) as follows:

‘Cross border issues within the UK

  1. Legislation for Wales, Scotland and Northern Ireland provides that theresponsible authority for an individual’s healthcare provision is the one where a person is usually resident and is not based on GP practiceregistration as provided by English legislation.

Scotland

  1. In the case of persons ordinarily and usually resident in Scotland butregistered with a GP practice in England, Scotland Health Board is the responsible commissioner. In the case of persons usually resident in England, but registered with a GP practice in Scotland, the English CCG in whose area they are usually resident is responsible.

Northern Ireland

  1. In the case of persons ordinarily and usually resident in Northern Ireland but registered with a GP practice in England, Northern Ireland is the responsible commissioner. In the case of persons resident in England, but registered with a GP practice in Northern Ireland, the English CCG in whose area they are resident is responsible.

Wales

  1. Where a patient is ordinarily and usually resident in Wales and registered with a GP practice in England, the Welsh Local Health Board (LHB) in whose area they reside is legally responsible for their care. Under a protocol between England and Wales for patients living on the England and Wales border, however, the CCG of which the GP practice is a member will commission services for that person on behalf of their LHB and will be the responsible commissioner. This continues the principle previously agreed between DH and the Welsh Government in relation to patients in LHBs bordering England.

Monmouthshire, Western Cheshire, Shropshire County, Herefordshire and Gloucestershire.

For patients resident elsewhere in England or Wales who are registered with a GP on the other side of the border, responsibility for commissioning or for planning and securing their healthcare will remain with the CCG or LHB where the patient defines his or her usual place of residence.

  1. The Welsh Government has indicated to Welsh Local Health Boards that they should not pay for treatment outside Wales unless previously authorised, other than where it is a case of emergency treatment. Health organisations on the Welsh border are strongly encouraged to enter into discussions and negotiations locally in order to agree appropriate arrangements for activity outside of contracts and involving cross-border patient flows – in particular in relation to emergency urgent care.
  1. The Personal Demographics Service (PDS) is available to providers tohelp determine the responsible commissioner for patients. The PDS is an electronic database of NHS patient demographic details such as name, which enables a patient to be readily identified by healthcare staff quickly and accurately. It primarily covers patients in England and Wales, although patients from Northern Ireland and Scotland who have been in contact with the NHS in England will normally have a record on the PDS.

Patients who move across borders within the UK

  1. Where a patient moves across the border from Scotland, Wales or Northern Ireland to England, the expectation would be for that individual to register with a GP practice at their earliest convenience. If they have not yet registered with a GP practice in England and are no longerregistered with a GP practice in Scotland, Wales or Northern Ireland,responsibility will be determined by usual residence.

Where a patient moves from Scotland to England but has not de-registered from their Scottish GP, the English CCG where they are usually resident will be the responsible commissioner.

Where a patient moved from Wales to England but has not de-registered from their Welsh GP, for patients living in counties bordering Wales, under the protocol arrangements (set out at paragraph 52 above) the Local Health Board in whose area the Welsh GP is located will be the responsible commissioner. For patients moving within England, the CCG in which they are usually resident will be the responsible commissioner. See paragraphs 63 -66 for details of responsibilities for patients moving across borders under the NHS Continuing Healthcare arrangements.

  1. The decision to transfer a patient with a long-term condition or receiving specialist treatment between Scotland, Wales or Northern Ireland andEngland should be made on the basis of patient need, with agreement between the placing and receiving authorities, and the agreement of the patient wherever possible. For patients who move within England, the responsible CCG should be determined as laid out in paragraph 1.

However, in some instances CCGs may wish to consider and agree flexible solutions, such as whether patient care should be provided by the originating CCG exercising functions on behalf of the receiving CCG for a specific length of time.

Transfer of patients to other CCG areas under NHS Continuing Healthcare arrangements

  1. ‘NHS Continuing Healthcare’ means a package of health and social care arranged and funded solely by the NHS.
  2. Where a CCG (‘the placing CCG’) arranges such a package, whether on its own or as a joint package of residential care arranged and funded by both the NHS and local authorities, the placing CCG remains responsible for the NHS contribution to the care, even where the person changes their GP practice (and associated CCG) as part of their care. These arrangements do not apply to a situation where a person either independently chooses to move to a different part of the country or is placed there because of an arrangement made by a local authority only.
  1. The arrangements apply regardless of whether nursing care by a registered nurse forms part of the care package, except in cases where the only planned service is NHS -funded nursing care provided in anursing home. A need for care from a registered nurse would not be sufficient to trigger these commissioning rules. Responsibility for commissioning health services that are not related to the placement, for example inpatient treatment in an NHS hospital, is determined in accordance with paragraph 1, and as such would be the responsibility of the CCG to which their GP practice belongs or, if the patient is not registered with a GP practice, where they usually reside.
  1. A decision to place a patient requiring NHS Continuing Health care in a care home or independent hospital in another CCG area           should be made after notifying the CCG where the care home or        independent hospital is located. This should be done before the patient is moved. In the interests of the patient, and in particular when a patient leaves hospital, such decisions should be made promptly to ensure that the patient is transferred to a setting where they will continue to receive quality treatment and care. For all services, there should always be communications between the two CCGs to ensure clarity over responsibilities and to avoid any potential for duplicate payments to the care home.
  1. For joint packages of care, where local authorities are placing residents who have health needs, they should work closely with the placing CCG responsible for commissioning the healthcare to ensure that a full assessment of health needs is made so that an appropriate joint package is put in place. CCGs should ensure that no one is deprived of the services that they are assessed as needing as a result of disputes over funding and that any review serves the patient’s best interests.
  1. Where a patient is provided with NHS Continuing Healthcare in their own home and they decide to move house (not into residential care), this will need careful discussion between the CCG currently providing    those services and the CCG responsible for the patient after they move. The responsible commissioner for such care is determined in ccordance with paragraph 1. In order to ensure continuity of care and ensure that arrangements represent the best interests of the patient, CCGs may need to come to an agreement about how services should be delivered.

In particular, CCGs will wish to consider flexible solutions, such as whether patient care should be commissioned by another CCG           exercising functions on behalf of the responsible CCG.

Transfer of NHS Continuing Healthcare patients across borders within the UK Scotland

  1. Where an English CCG (‘the placing CCG’), arranges a package of NHS Continuing Healthcare (other than a package that is only NHS-funded nursing care) the placing CCG will remain responsible for that    person’s CHC until that episode of care has ended. For example, the individual’s health may subsequently improve rendering them no longer eligible for NHS Continuing Healthcare. In these circumstances if the individual wishes to remain in that care setting responsibility would then fall to the Health Board (and local authority) where they are usually resident.
  1. The placing CCG should ensure that responsibilities are agreed before the patient is moved to ensure that continuity of care is maintained.

CCGs responsible for placing a person in a Scottish Health Board area should therefore inform the receiving Health Board of the placement as soon as practicable. Arrangements for NHS nursing care differ between England and Scotland.

  1. In England the CCG makes a flat rate contribution towards the cost of an individual’s registered nursing care. In Scotland personal and  nursing care are provided free of charge. When a Scottish Health Board makes a placement in England, the individual will be eligible for personal and nursing care payments from the Scottish placing authority

Wales

  1. As set out in the protocol between England and Wales where a CCG or LHB arranges a package of NHS Continuing  Healthcare (other than a package that is only NHS -funded nursing care), the placing body will remain responsible for that person’s continuing healthcare until that episode of care has ended.

Transfer of NHS-funded nursing care patients across borders within UK

  1. Arrangements are currently being explored with Scotland and Northern Ireland and this guidance will be updated in due course.

Wales

  1. As set out in the protocol between England and Wales, where a CCG or LHB arranges the placement of an individual who is eligible for NHS funded nursing care in a nursing home in Wales, the receiving LHB is responsible. This is a reciprocal arrangement, so where a LHB arranges the placement of an individual eligible for NHS-funded nursing care in a nursing home in England, the CCG is responsible.

Judicial Review

The basis of judicial review rests in the free-standing principle that every action of a public body must be justified by law.

Judicial review is a procedure by which the High Court reviews the lawfulness of decisions made by public bodies, such as the departments of state, local authorities, and NHS bodies.

‘Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs- that is to say misuses of public power’. Mr Justice Sedley in R -v- Somerset  CC ex p Dixon [1998] and applied by the Court of Appeal in R (Corner House Research) -v- Secretary of State for Trade and Industry [2005].

This means that there must be a current material wrong to be put right.

Judicial review is primarily concerned with lawful process in public administration.  As such, it is neither a mechanism for determining the merits of a case, nor of resolving factual disputes.

Judicial review involves scrutiny by the court of the decision-making process underlying a decision made by a public body which may be unlawful by reason of:

(i) a breach of statutory duty;

(ii) failure to consider relevant factors;

(iii) consideration of irrelevant factors;

(iv) an irrational act (i.e. the making of a decision which is absurd); and

(v) fettering of discretion (i.e. the application of a policy so rigidly as to preclude the making of exceptions).

Permission is required from a judge to bring a judicial review case.

Applications for judicial review must generally be made promptly, and in any event within three months of when the claim first arose. The time limits cannot be extended by the agreement of the parties. The court can extend time, but in practice almost always never does and tends to take a strict view when considering time limits. This means that time is of the essence and it is vital that advisors weigh up at a very early stage whether a referral to a specialist practitioner is appropriate. This applies whether or not the case is being dealt with under the complaints procedure as time runs from the decision complained about and any delays in complaints handling are likely to lead to a case for judicial review being time-barred.

If the challenge succeeds, the unlawful decision is overturned, and the public body must adhere to the rules in reconsidering the decision.

The judicial review procedure is mainly (but not exclusively) governed by CPR Part 54 and the associated practice directions. he key associated practice directions to CPR Part 54 are CPR PD 54A (Judicial Review Practice), CPR PD 54D (Venue for Claims), and CPR PD 54E (Planning Court). he Administrative Court is part of the Queen’s Bench Division of the High Court (one of the three divisions of the High Court, together with the Chancery Division and Family Division). The Administrative Court hears the majority of applications for judicial review. Judicial review is the procedure by which an individual, company, or organisation may challenge the act or omission of a public body and ensure that the public body meets its legal obligations. he judiciary in the Administrative Court consists of the High Court Judges (The Honourable Mr/Mrs Justice…) and other judges or practitioners who have been authorised to sit in the Administrative Court. The judges are addressed in Court as my Lord/my Lady. the Royal Courts of Just ice there is also a Master of the Administrative Court, (addressed in Court as Master). Masters generally deal with interim and pre-action applications, and manage the claims so that they proceed without delay.

Generally, it is the duty of all parties to litigation, whether represented or not, to bring relevant matters to the attention of the Court an d not to mislead the Court. This means for example that parties must not misrepresent the law and must therefore inform the Court of any relevant legislation or previous Court decisions which are applicable to their case and of which they are aware (whether favourable or not to their case). In addition there is a particular duty when an application is made to the Court with out the other party being present or notified in advance (usually in cases of urgency).

Here the litigant is under a duty to disclose any facts or other matters which might be relevant to the Court’s decision, even if adverse to their case, and specifically draw the Court’s attention to such matters.

It is very important that litigants in person give copies of any written document which sets out their arguments (known as a ‘skeleton argument’) which they intend to rely on, and any other material (for example, reports of cases) in support of their argument s, to the Court and to their opponents in good time before the hearing.

At the hearing, the claim ant usually speaks first, then the defendant speaks, and then the claimant has an opportunity to comment on what the defendant has said. Sometimes the judge may think it is sensible, depending on the circumstances, to vary that order and, for example, let the defendant speak first.

At the hearing, the claimant usually speaks first, then the defendant speaks, and then the claimant has an opportunity to comment on what the defendant has said. Sometimes the judge may think it is sensible, depending on the circumstances, to vary that order and, for example, let the defendant speak first.

So far as reasonably possible, an intending claimant should try to resolve the claim without litigation. Litigation should be a last resort. The appropriate pre-action Protocol in judicial review proceedings is the Judicial Review Pre-action Protocol. It is very important to follow the Judicial Review Pre-action Protocol, if that is possible, before commencing a claim. There are two reasons for this. First of all, it may serve to resolve the issue without need of litigation or at least to narrow the issues in the litigation. Secondly, failure to follow the Protocol Administrative Guide Judicial Review may result in costs sanctions being applied to the litigant who has not followed the Protocol.

A claim for judicial review must be brought within the relevant time limits fixed by the CPR. The Protocol process does not affect the time limits for starting the claim (see paragraph 5.4 of this Guide). The fact that a party is using the Protocol would not, of itself, be likely to justify a failure to bring a claim within the time limits set by the CPR or be a reason to extend time. Therefore, a party considering applying for judicial review should act quickly to comply with the Protocol but note the time limits for issue if the claim remains unresolved.

The Protocol may not be appropriate in urgent cases (e.g. where there is an urgent need for an interim order) but even in urgent cases, the parties should attempt to comply with the Protocol. The Court will not apply cost sanctions for non-compliance where it is satisfied that it was not possible to comply because of the urgency of the matter.

Stage one of the Protocol requires the parties to consider whether a method of alternative dispute resolution (‘ADR’) would be more appropriate. The Protocol mentions discussion and negotiation, referral to the Ombudsman and mediation (a form of facilitated negotiation assisted by an independent neutral party).

Stage two is to send the defendant a pre-action letter. The letter should be inthe format outlined in Annex A to the Protocol. The letter should contain the date and details of the act or omission being challenged and a clear summary of the facts on which the claim is based. It should also contain the details of any relevant information that the claimant is seeking and an explanation of why it is considered relevant.

The defendant should normally be given 14 days to respond to the pre-action letter and must do so in the format outlined in Annex B to the Protocol. Where necessary the defendant may request the claimant to allow them additional time to respond. The claimant should allow the defendant reasonable time to respond, where that is possible without putting the time limits to start the case in jeopardy.

Situations where a Claim for Judicial Review May Be Inappropriate There are situations in which judicial review will not be appropriate or possible. These should be considered at the outset. Litigants should refer to the CPR and to the commentary in academic works on administrative law.

The following are some of those situations in outline:

Lack of Standing (or Locus Standi)

A person may not bring an application for judicial review in the Administrative Court unless that person has a ‘sufficient interest’ in the matter to which the claim relates. The issue of standing will generally be determined when considering permission but it may be raised and determined at any stage.

The parties and/or the Court cannot agree that a case should continue where the claim ant does not have standing

Nor does the Court have a discretion. A party must have standing in order to bring a claim.

The sufficient interest requirement is case specific and there is no general definition

Those whom a decision directly and adversely affects will seldom (if ever) be refused relief for lack of standing. Some claimants may be considered to have sufficient standing where the claim is brought in the public interest.

Adequate Alternative Remedy

Judicial review is often said to be a remedy of last resort. If there is another method of challenge available to the claimant, which provides an adequate remedy, the alternative remedy should generally be exhausted before applying for judicial review. The alternative remedy may come in various guises. Examples include an internal complaints procedure or a statutory appeal. If the Court finds that the claimant has an adequate alternative remedy, it will generally refuse permission to apply for judicial review.

The Claim is Academic

Where a claim is purely academic, that is to say that there is no longer a case to be decided which will directly affect the rights and obligations of the parties,

it will generally not be appropriate to bring judicial review proceedings. An example of such a scenario would be where the defendant has agreed to reconsider the decision challenged.

Only in exceptional circumstances where two conditions are satisfied will the Court proceed to determine an academic issue.

These conditions are: (1) a large number of similar cases exist or are anticipated, or at least other similar cases exist or are anticipated; and (2) the decision in a judicial review will not be fact-sensitive.

The Outcome is Unlikely to be Substantially Different

The Courts have in the past refused permission to apply for judicial review where the decision would be the same even if the public body had not made the error in question. Section 31(3C)-(3F) of the Senior Courts Act 1981 now provides that the Courts must refuse permission to apply for judicial review if it appears to the Court highly likely that the outcome for the claimant would not be substantially different even if the conduct complained about had not occurred. The Court has discretion to allow the claim to proceed if there is an exceptional public interest in doing so.

The Claim Challenges a Decision of one of the Superior Courts

The Superior Courts are the High Court, the Court of Appeal, and the Supreme Court. They cannot be subject to judicial review.

The general time limit for starting a claim for judicial review requires that the claim form be filed promptly and in any event not later than 3 months after the grounds for making the claim first arose.

It must not be presumed that just because the claim has been lodged within the three month time that the claim has been made promptly, or within time.

When considering whether a claim is within time a claimant should also be aware of two important points:

(i)       the time limit may not be extended by agreement between the

parties (although it can be extended by the Court);

(ii)      the time limit begins to run from the date the decision to be

challenged was made (not the date when the claimant was

informed about the decision).

There are exceptions to the general time limit rule.

CPR 3.1(2)(a) allows the Court to extend or shorten the time limit even if the time for compliance has already expired.

Where the time limit has already passed, the claimant must apply for an extension in section 8 of the claim form (form N461). The application for an extension of time will be considered by the judge at the same time as deciding whether to grant permission.

The Court will require evidence explaining the delay. The Court will only extend time if an adequate explanation is given for the delay, and if the Court is satisfied that an extension of time will not cause substantial hardship or prejudice to the defendant or any other party, and that an extension of time will not be detrimental to good administration.

Judicial review is a two stage process. First the claimant must obtain permission (sometimes referred to as ‘leave’) to apply for judicial review from the Court. If permission is granted by the Court then the second stage is the substantive claim. Unlike a number of other civil and criminal proceedings the judicial review process does not incorporate a case management conference, although one may be ordered by a judge. The Court expects the parties to liaise with each other and the ACO to ensure that the claim is ready for the Court. An open dialogue between the parties and the staff of the Administrative Court Office is essential to the smooth running of the case.

The duty of candour ensures that all relevant information is before the Court.

The general rules in civil procedure requiring the disclosure of documents do not apply to judicial review claims. However, the Court can order disclosure, exceptionally, in a particular claim. An application may be made in the course of a judicial review claim for disclosure of specific documents or documents of a particular class or type. A Court may order disclosure (under CPR 31.12(1)) of documents where this is necessary to deal fairly and justly with a particular issue. In practice, orders for disclosure of documents are rarely necessary in judicial review claims. The disclosure of documents may not, in fact, be necessary to allow the Court to consider a particular issue. Furthermore, a defendant may have disclosed the relevant documents (either before proceedings begin or as part of its evidence provided during proceedings .

The claimant must obtain permission from the Court to apply for judicial review. If permission is granted, the claim will usually proceed to a full hearing (often referred to as the substantive hearing). In the first instance the claim papers (comprising the papers filed by the claimant and any acknowledgment(s) of service) are sent to a judge. The judge will then consider the papers and determine whether to grant permission to apply for judicial review.

The Court will refuse permission to apply for judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success, although there are a number of orders the Court can make before ultimately determining this question. Even if a case is though t to be arguable, the judge must refuse permission if the judge considers that the out come for the applicant would not have been substantially different if the conduct complained of had not occurred.

There a number of different orders that may be made by the judge following consideration of the papers. The following are the most common orders made by judges considering permission to apply for judicial review, but they are not exhaustive.

Permission Granted

The judge has determined that there is an arguable case and that the case will proceed to a substantive hearing of the application for judicial review. In this event, the judge will usually give directions for the substantive hearing.

Permission Refused

The judge has determined that none of the grounds advanced by the claimant are arguable and as such the claim should not proceed to a substantive hearing. When permission is refused on the papers, the judge will record brief reasons for that decision in the order.

The judge may order the claimant to pay the defendant’s costs of preparing an acknowledgement of service at this stage.

Permission Granted in Part

The judge has determined that some of the grounds advanced by the claimant are arguable. The judge will direct the matter to proceed to a substantive hearing on those grounds only.

The claimant can request that the refused grounds are reconsidered for permission at an oral hearing.

Permission adjourned to an oral hearing on notice

The judge has made no determination on the application for permission.

Instead the application for permission will be considered at an oral hearing in Court with the claimant and any other parties who wish to make representations to the Court attending. The hearing will take a similar form to that of a renewed permission hearing.

Permission adjourned to a ‘rolled up hearing’

The judge has made no determination on the application for permission. Instead the application for permission will be considered in Court with the substantive hearing to follow immediately if permission is granted.

In practice, at the rolled up hearing the judge will not necessarily consider permission then the substantive hearing one after another formulaically. The judge is more likely to hear argument on both points together and give a single judgment, but the manner in which the hearing is dealt with is within the discretion of the judge.

When preparing documentation for a rolled up hearing the parties should apply the same rules as apply when preparing for a substantive hearing. This is because, despite the fact that permission has not yet been granted or refused, substantive consideration of the application for judicial review will, if appropriate, take place on the same day. Thus , the documentation before the Court should be the same as if the hearing was the substantive hearing.

Where a rolled up hearing is ordered the claimant will be asked by the ACO to sign an undertaking to pay the fee for the substantive application for judicial review which would then become payable in the event that the judge later grants permission.

The application for permission is to be resubmitted

The judge has made no determination on the application for permission.

Instead the judge will request the parties perform some act (such as file additional documents or representations) or await some other event (such as the outcome of a similar case). Once the act or event has been performed, or when the time limit for doing so has expired, the papers will be resubmitted to the judge to consider permission on the papers.

Totally Without Merit Orders

If the judge considers that the application for permission is ‘totally without merit’ then he/she may refuse permission and certify the claim as being totally without merit in the order.

The term ‘totally without merit’ has been defined broadly and applies to a case that it is bound to fail, not one that is necessarily abusive or vexatious.

Where a case is certified as totally without merit there is no right to a renewed oral hearing and the claim is concluded in the Administrative Court, albeit appeal rights do apply.

Reconsideration at an Oral Hearing

If permission is refused the claimant should consider the judge’s reasons for refusing permission on the papers before taking any further action.

If the claimant takes no further action then, seven days after service of the order refusing permission, the ACO will simply close the case. If the Court has directed the parties to file written submissions on costs or has given directions in relation to any other aspect of the case, the claim will remain open until the costs or that other aspect are resolved. If there is an interim or costs order in place at that time, and unless the Court has directed otherwise, it will continue in effect (even though the case is closed administratively) and the parties will have to apply to set aside that order. If, having considered the reasons, the claimant wishes to continue to contest the matter they may not appeal, but they may request that the application for permission to apply for judicial review be reconsidered at an oral hearing (often referred to as a renewed hearing).

When the ACO serves an or der refusing permission to apply for judicial review on the papers it will also include a renewal notice (form 86b).

If the claimant wishes to have their application for permission to apply for judicial review reconsidered at an oral hearing they should complete and end this form back to the ACO within seven days of the date upon which it is served. The claimant should send a copy of the 86b to any party that filed an acknowledgement of service. The Claimant must provide grounds for renewing the application for permission, and must in those grounds address the judge’s reasons for refusing permission by explaining in brief terms why the claimant maintains those reasons are wrong.

It is not sufficient simply to state that renewal is sought on the original grounds, without seeking to explain the asserted error in the refusing judge’s reasons. If the refusing judge’s reasons are not addressed, the judge may make an adverse costs order against the claimant at the renewal hearing and/or impose any other sanction which he/she considers to be appropriate.

Upon receipt of the renewal notice the ACO will list an oral hearing. The hearing cannot, without judicial order, take place without all parties being given at least two days notice of the hearing. The ACO will send notice to all parties of the date of the hearing. The renewed hearing is normally a public hearing that any one may attend and observe and will take place in Court before a judge. The only issue at the hearing is the arguability of the claim or particular grounds, so hearings are expected to be short, with the parties making succinct submissions. 

CPR Part 54 provides,

Scope and interpretation

54.1

(1)     This Section of this Part contains rules about judicial review.

(2)     In this Section –

(a)     a ‘claim for judicial review’ means a claim to review the lawfulness of –

(i)       an enactment; or

(ii)      a decision, action or failure to act in relation to the exercise of a public function.

(b)     revoked

(c)     revoked

(d)     revoked

(e)     ‘the judicial review procedure’ means the Part 8 procedure as modified by this Section;

(f)      ‘interested party’ means any person (other than the claimant and defendant) who is directly affected by the claim; and

(g)     ‘court’ means the High Court, unless otherwise stated.

(Rule 8.1(6)(b) provides that a rule or practice direction may, in relation to a specified type of proceedings, disapply or modify any of the rules set out in Part 8 as they apply to those proceedings)

Who may exercise the powers of the High Court

54.1A

(1)     A court officer assigned to the Administrative Court office who is –

(a)     a barrister; or

(b)     a solicitor,

may exercise the jurisdiction of the High Court with regard to the matters set out in paragraph (2) with the consent of the President of the Queen’s Bench Division.

(2)     The matters referred to in paragraph (1) are –

(a)     any matter incidental to any proceedings in the High Court;

(b)     any other matter where there is no substantial dispute between the parties; and

(c)     the dismissal of an appeal or application where a party has failed to comply with any order, rule or practice direction.

(3)     A court officer may not decide an application for –

(a)     permission to bring judicial review proceedings;

(b)     an injunction;

(c)     a stay of any proceedings, other than a temporary stay of any order or decision of the lower court over a period when the High Court is not sitting or cannot conveniently be convened, unless the parties seek a stay by consent.

(4)     Decisions of a court officer may be made without a hearing.

(5)     A party may request any decision of a court officer to be reviewed by a judge of the High Court.

(6)     At the request of a party, a hearing will be held to reconsider a decision of a court officer, made without a hearing.

(7)     A request under paragraph (5) or (6) must be filed within 7 days after the party is served with notice of the decision.

When this Section must be used

54.2  The judicial review procedure must be used in a claim for judicial review where the claimant is seeking –

(a)     a mandatory order;

(b)     a prohibiting order;

(c)     a quashing order; or

(d)     an injunction under section 30 of the Supreme Court Act 19811 (restraining a person from acting in any office in which he is not entitled to act).

When this Section may be used

54.3

(1)     The judicial review procedure may be used in a claim for judicial review where the claimant is seeking –

(a)     a declaration; or

(b)     an injunction.

(Section 31(2) of the Supreme Court Act 1981 sets out the circumstances in which the court may grant a declaration or injunction in a claim for judicial review)

(Where the claimant is seeking a declaration or injunction in addition to one of the remedies listed in rule 54.2, the judicial review procedure must be used)

(2)     A claim for judicial review may include a claim for damages, restitution or the recovery of a sum due but may not seek such a remedy alone.

(Section 31(4) of the Supreme Court Act sets out the circumstances in which the court may award damages, restitution or the recovery of a sum due on a claim for judicial review)

Permission required

54.4  The court’s permission to proceed is required in a claim for judicial review whether started under this Section or transferred to the Administrative Court.

Time limit for filing claim form

54.5   In this rule —

‘the planning acts’ has the same meaning as in section 336 of the Town and Country Planning Act 19902;

‘decision governed by the Public Contracts Regulations 2015’ means any decision the legality of which is or may be affected by a duty owed to an economic operator by virtue of regulations 89 or 90 of those Regulations (and for this purpose it does not matter that the claimant is not an economic operator); and

‘economic operator’ has the same meaning as in regulation 2(1) of the Public Contracts Regulations 2015.

(1)     The claim form must be filed –

(a)     promptly; and

(b)     in any event not later than 3 months after the grounds to make the claim first arose.

(2)     The time limits in this rule may not be extended by agreement between the parties.

(3)     This rule does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review.

(4)     Paragraph (1) does not apply in the cases specified in paragraphs 5) and (6).

(5)     Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose.

(6)     Where the application for judicial review relates to a decision governed by the Public Contracts Regulations 2015, the claim form must be filed within the time within which an economic operator would have been required by regulation 92(2) of those Regulations (and disregarding the rest of that regulation) to start any proceedings under those Regulations in respect of that decision.

Claim form

54.6  

(1)     In addition to the matters set out in rule 8.2 (contents of the claim form) the claimant must also state –

(a)     the name and address of any person he considers to be an interested party;

(b)     that he is requesting permission to proceed with a claim for judicial review; and

(c)     any remedy (including any interim remedy) he is claiming; and

(d)     where appropriate, the grounds on which it is contended that the claim is an Aarhus Convention claim.

(Rules 45.41 to 45.44 make provision about costs in Aarhus Convention claims.)

(Part 25 sets out how to apply for an interim remedy)

(2)     The claim form must be accompanied by the documents required by Practice Direction 54A.

Service of claim form

54.7   The claim form must be served on –

(a)     the defendant; and

(b)     unless the court otherwise directs, any person the claimant considers to be an interested party, within 7 days after the date of issue.

Judicial review of decisions of the Upper Tribunal

54.7A

(1)     This rule applies where an application is made, following refusal by the Upper Tribunal of permission to appeal against a decision of the First Tier Tribunal, for judicial review –

(a)     of the decision of the Upper Tribunal refusing permission to appeal; or

(b)     which relates to the decision of the First Tier Tribunal which was the subject of the application for permission to appeal.

(2)     Where this rule applies –

(a)     the application may not include any other claim, whether against the Upper Tribunal or not; and

(b)     any such other claim must be the subject of a separate application.

(3)     The claim form and the supporting documents required by paragraph (4) must be filed no later than 16 days after the date on which notice of the Upper Tribunal’s decision was sent to the applicant.

(4)     The supporting documents are –

(a)     the decision of the Upper Tribunal to which the application relates, and any document giving reasons for the decision;

(b)     the grounds of appeal to the Upper Tribunal and any documents which were sent with them;

(c)     the decision of the First Tier Tribunal, the application to that Tribunal for permission to appeal and its reasons for refusing permission; and

(d)     any other documents essential to the claim.

(5)     The claim form and supporting documents must be served on the Upper Tribunal and any other interested party no later than 7 days after the date of issue.

(6)     The Upper Tribunal and any person served with the claim form who wishes to take part in the proceedings for judicial review must, no later than 21 days after service of the claim form, file and serve on the applicant and any other party an acknowledgment of service in the relevant practice form.

(7)     The court will give permission to proceed only if it considers –

(a)     that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law; and

(b)     that either –

(i)       the claim raises an important point of principle or practice; or

(ii)      there is some other compelling reason to hear it.

(8)     If the application for permission is refused on paper without an oral hearing, rule 54.12(3) (request for reconsideration at a hearing) does not apply.

(9)     If permission to apply for judicial review is granted –

(a)     if the Upper Tribunal or any interested party wishes there to be a hearing of the substantive application, it must make its request for such a hearing no later than 14 days after service of the order granting permission; and

(b)     if no request for a hearing is made within that period, the court will make a final order quashing the refusal of permission without a further hearing.

(10)   The power to make a final order under paragraph (9)(b) may be exercised by the Master of the Crown Office or a Master of the Administrative Court.

Acknowledgment of service

54.8

(1)     Any person served with the claim form who wishes to take part in the judicial review must file an acknowledgment of service in the relevant practice form in accordance with the following provisions of this rule.

(2)     Any acknowledgment of service must be –

(a)     filed not more than 21 days after service of the claim form; and

(b)     served on –

(i)       the claimant; and

(ii)      subject to any direction under rule 54.7(b), any other person named in the claim form, as soon as practicable and, in any event, not later than 7 days after it is filed.

(3)     The time limits under this rule may not be extended by agreement between the parties.

(4)     The acknowledgment of service –

(a)     must –

(i)       where the person filing it intends to contest the claim, set out a summary of his grounds for doing so; and

(ia)    where the person filing it intends to contest the application for permission on the basis that it is highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred, set out a summary of the grounds for doing so; and

(ii)      state the name and address of any person the person filing it considers to be an interested party; and

(b)     may include or be accompanied by an application for directions.

(5)     Rule 10.3(2) does not apply.

(Section 31(3C) of the Senior Courts Act 1981(1) requires the court, where it is asked to do so by the defendant, to consider whether the outcome for the claimant would have been substantially different if the conduct complained of had not occurred.)

Failure to file acknowledgment of service

54.9

(1)     Where a person served with the claim form has failed to file an acknowledgment of service in accordance with rule 54.8, he –

(a)     may not take part in a hearing to decide whether permission should be given unless the court allows him to do so; but

(b)     provided he complies with rule 54.14 or any other direction of the court regarding the filing and service of –

(i)       detailed grounds for contesting the claim or supporting it on additional grounds; and

(ii)      any written evidence, may take part in the hearing of the judicial review.

(2)     Where that person takes part in the hearing of the judicial review, the court may take his failure to file an acknowledgment of service into account when deciding what order to make about costs.

(3)     Rule 8.4 does not apply.

Permission given

54.10

(1)     Where permission to proceed is given the court may also give directions.

(2)     Directions under paragraph (1) may include –

(a)     a stay of proceedings to which the claim relates;

(b)     directions requiring the proceedings to be heard by a Divisional Court.

Service of order giving or refusing permission

54.11

The court will serve –

(a)     the order giving or refusing permission; and

(ai)    any certificate (if not included in the order) that permission has been granted for reasons of exceptional public interest in accordance with section 31(3F) of the Senior Courts Act 1981; and

(b)     any directions,

on –

(i)       the claimant;

(ii)      the defendant; and

(iii)     any other person who filed an acknowledgment of service.

Permission decision where court requires a hearing

54.11A

(1)     This rule applies where the court wishes to hear submissions on—

(a)     whether it is highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred; and if so

(b)     whether there are reasons of exceptional public interest which make it nevertheless appropriate to give permission.

(2)     The court may direct a hearing to determine whether to give permission.

(3)     The claimant, defendant and any other person who has filed an acknowledgment of service must be given at least 2 days’ notice of the hearing date.

(4)     The court may give directions requiring the proceedings to be heard by a Divisional Court.

(5)     The court must give its reasons for giving or refusing permission.

Permission decision without a hearing

54.12

(1)     This rule applies where the court, without a hearing –

(a)     refuses permission to proceed; or

(b)     gives permission to proceed –

(i)       subject to conditions; or

(ii)      on certain grounds only.

(2)     The court will serve its reasons for making the decision when it serves the order giving or refusing permission in accordance with rule 54.11.

(3)     Subject to paragraph (7), the claimant may not appeal but may request the decision to be reconsidered at a hearing.

(4)     A request under paragraph (3) must be filed within 7 days after service of the reasons under paragraph (2).

(5)     The claimant, defendant and any other person who has filed an acknowledgment of service will be given at least 2 days’ notice of the hearing date.

(6)     The court may give directions requiring the proceedings to be heard by a Divisional Court.

(7)     Where the court refuses permission to proceed and records the fact that the application is totally without merit in accordance with rule 23.12, the claimant may not request that decision to be reconsidered at a hearing.

Defendant etc. may not apply to set aside

54.13          Neither the defendant nor any other person served with the claim form may apply to set aside an order giving permission to proceed.

Response

54.14

(1)     A defendant and any other person served with the claim form who wishes to contest the claim or support it on additional grounds must file and serve –

(a)     detailed grounds for contesting the claim or supporting it on additional grounds; and

(b)     any written evidence,

within 35 days after service of the order giving permission.

(2)     The following rules do not apply –

(a)     rule 8.5 (3) and 8.5 (4)(defendant to file and serve written evidence at the same time as acknowledgment of service); and

(b)     rule 8.5 (5) and 8.5(6) (claimant to file and serve any reply within 14 days).

Where claimant seeks to rely on additional grounds

54.15  The court’s permission is required if a claimant seeks to rely on grounds other than those for which he has been given permission to proceed.

Evidence

54.16

(1)     Rule 8.6 (1) does not apply.

(2)     No written evidence may be relied on unless –

(a)     it has been served in accordance with any –

(i)       rule under this Section; or

(ii)      direction of the court; or

(b)     the court gives permission.

Court’s powers to hear any person

54.17

(1)     Any person may apply for permission –

(a)     to file evidence; or

(b)     make representations at the hearing of the judicial review.

(2)     An application under paragraph (1) should be made promptly.

Judicial review may be decided without a hearing

54.18          The court may decide the claim for judicial review without a hearing where all the parties agree.

Court’s powers in respect of quashing orders

54.19

(1)     This rule applies where the court makes a quashing order in respect of the decision to which the claim relates.

(2)     The court may –

(a)

(i)       remit the matter to the decision-maker; and

(ii)      direct it to reconsider the matter and reach a decision in accordance with the judgment of the court; or

(b)     in so far as any enactment permits, substitute its own decision for the decision to which the claim relates.

(Section 31 of the Supreme Court Act 19814 enables the High Court, subject to certain conditions, to substitute its own decision for the decision in question.)

Transfer

54.20          The court may

(a)     order a claim to continue as if it had not been started under this Section; and

(b)     where it does so, give directions about the future management of the claim.

(Part 30 (transfer) applies to transfers to and from the Administrative Court) …’

PD 54A further states,

‘Rule 54.5 – Time limit for filing claim form

4.1     Where the claim is for a quashing order in respect of a judgment, order or conviction, the date when the grounds to make the claim first arose, for the purposes of rule 54.5(1)(b), is the date of that judgment, order or conviction.

Rule 54.6 – Claim form

Interested parties

5.1     Where the claim for judicial review relates to proceedings in a court or tribunal, any other parties to those proceedings must be named in the claim form as interested parties under rule 54.6(1)(a) (and therefore served with the claim form under rule 54.7(b))…

Human rights

5.3     Where the claimant is seeking to raise any issue under the Human Rights Act 1998, or seeks a remedy available under that Act, the claim form must include the information required by paragraph 15 of Practice Direction 16.

Devolution issues

5.4     Where the claimant intends to raise a devolution issue, the claim form must:

(1)     specify that the applicant wishes to raise a devolution issue and identify the relevant provisions of the Government of Wales Act 2006, the Northern Ireland Act 1998 or the Scotland Act 1998; and

(2)     contain a summary of the facts, circumstances and points of law on the basis of which it is alleged that a devolution issue arises.

5.5     In this practice direction ‘devolution issue’ has the same meaning as in paragraph 1, Schedule 9 to the Government of Wales Act 2006, paragraph 1, Schedule 10 to the Northern Ireland Act 1998; and paragraph 1, Schedule 6 to the Scotland Act 1998.

Claim form

5.6     The claim form must include or be accompanied by –

(1)     a detailed statement of the claimant’s grounds for bringing the claim for judicial review;

(2)     a statement of the facts relied on;

(3)     any application to extend the time limit for filing the claim form;

(4)     any application for directions.

5.7     In addition, the claim form must be accompanied by

(1)     any written evidence in support of the claim or application to extend time;

(2)     a copy of any order that the claimant seeks to have quashed;

(3)     where the claim for judicial review relates to a decision of a court or tribunal, an approved copy of the reasons for reaching that decision;

(4)     copies of any documents on which the claimant proposes to rely;

(5)     copies of any relevant statutory material; and

(6)     a list of essential documents for advance reading by the court (with page references to the passages relied on).

5.8     Where it is not possible to file all the above documents, the claimant must indicate which documents have not been filed and the reasons why they are not currently available.

Bundle of documents

5.9     The claimant must file one copy of a paginated and indexed bundle containing all the documents referred to in paragraphs 5.6 and 5.7 unless the case is to be heard before a Divisional Court. For Divisional Court cases the number of bundles required will be one set for each judge hearing the case.

5.10   Attention is drawn to rules 8.5(1) and 8.5(7).

Rule 54.7 – Service of claim form

6.1     Except as required by rules 54.11 or 54.12(2), the Administrative Court will not serve documents and service must be effected by the parties…

Rule 54.8 – Acknowledgment of service

7.1     Attention is drawn to rule 8.3(2) and the relevant practice direction and to rule 10.5.

Rule 54.10 – Permission given

Directions

8.1     Case management directions under rule 54.10(1) may include directions about serving the claim form and any evidence on other persons.

8.2     Where a claim is made under the Human Rights Act 1998, a direction may be made for giving notice to the Crown or joining the Crown as a party. Attention is drawn to rule 19.4A and paragraph 6 of Practice Direction 19A.

8.3     Omitted

Permission without a hearing

8.4     The court will generally, in the first instance, consider the question of permission without a hearing.

Permission hearing

8.5     Neither the defendant nor any other interested party need attend a hearing on the question of permission unless the court directs otherwise.

8.6     Where the defendant or any party does attend a hearing, the court will not generally make an order for costs against the claimant.

Rule 54.11 – Service of order giving or refusing permission

9.1     An order refusing permission or giving it subject to conditions or on certain grounds only must set out or be accompanied by the court’s reasons for coming to that decision.

Rule 54.14 – Response

10.1   Where the party filing the detailed grounds intends to rely on documents not already filed, he must file a paginated bundle of those documents when he files the detailed grounds.

Rule 54.15 – Where claimant seeks to rely on additional grounds

11.1   Where the claimant intends to apply to rely on additional grounds at the hearing of the claim for judicial review, he must give notice to the court and to any other person served with the claim form no later than 7 clear days before the hearing (or the warned date where appropriate).

Rule 54.16 – Evidence

12.1   Disclosure is not required unless the court orders otherwise.

Rule 54.17 – Court’s powers to hear any person

13.1   Where all the parties consent, the court may deal with an application under rule 54.17 without a hearing.

13.2   Where the court gives permission for a person to file evidence or make representations at the hearing of the claim for judicial review, it may do so on conditions and may give case management directions.

13.3   An application for permission should be made by letter to the Administrative Court office, identifying the claim, explaining who the applicant is and indicating why and in what form the applicant wants to participate in the hearing.

13.4   If the applicant is seeking a prospective order as to costs, the letter should say what kind of order and on what grounds.

13.5   Applications to intervene must be made at the earliest reasonable opportunity, since it will usually be essential not to delay the hearing.

Rule 54.20 – Transfer

14.1   Attention is drawn to rule 30.5.

14.2   In deciding whether a claim is suitable for transfer to the Administrative Court, the court will consider whether it raises issues of public law to which Part 54 should apply.

Skeleton arguments

15.1  The claimant must file and serve a skeleton argument not less than 21 working days before the date of the hearing of the judicial review (or the warned date).

15.2   The defendant and any other party wishing to make representations at the hearing of the judicial review must file and serve a skeleton argument not less than 14 working days before the date of the hearing of the judicial review (or the warned date).

15.3   Skeleton arguments must contain:

(1)     a time estimate for the complete hearing, including delivery of judgment;

(2)     a list of issues;

(3)     a list of the legal points to be taken (together with any relevant authorities with page references to the passages relied on);

(4)     a chronology of events (with page references to the bundle of documents (see paragraph 16.1);

(5)     a list of essential documents for the advance reading of the court (with page references to the passages relied on) (if different from that filed with the claim form) and a time estimate for that reading; and

(6)     a list of persons referred to.

Bundle of documents to be filed

16.1   The claimant must file a paginated and indexed bundle of all relevant documents required for the hearing of the judicial review when he files his skeleton argument.

16.2   The bundle must also include those documents required by the defendant and any other party who is to make representations at the hearing.

Agreed final order

17.1   If the parties agree about the final order to be made in a claim for judicial review, the claimant must file at the court a document (with 2 copies) signed by all the parties setting out the terms of the proposed agreed order together with a short statement of the matters relied on as justifying the proposed agreed order and copies of any authorities or statutory provisions relied on.

17.2   The court will consider the documents referred to in paragraph 17.1 and will make the order if satisfied that the order should be made.

17.3   If the court is not satisfied that the order should be made, a hearing date will be set.

17.4   Where the agreement relates to an order for costs only, the parties need only file a document signed by all the parties setting out the terms of the proposed order.’

Approach of the Court in a social care case

In Davey, R (On the Application Of) v Oxfordshire County Council [2017] Mr Justice Morris made the following observations about  the approach of the Court upon judicial review of a decision by a public authority in the field of adult social care,

[Relevant] authorities include R v Gloucestershire County Council ex parte Barry [1997] AC 584; R (Lloyd) v Barking and Dagenham LBC [2001] EWCA Civ 533; R (P) v Essex County Council [2004] EWHC 2027 (Admin); Ireneschild, supra; R(M) v Slough BC [2008] UKHL 52; R (F) v Wirral BC [2009] EWHC 1629 (Admin); R (KM) v Cambridgeshire CC, supra; R (GS) v Camden LBC [2016] EWHC 1762. A number of principles emerge from these authorities.

First, as to the meaning of “need” (or “in need”), this denotes something more than merely “want” but falls far short of “cannot survive without”. The words “are in need of”, refers to present needs and not the future. The duty should not be extended to a person who does not currently satisfy a requirement simply because he will or may do so in the future: R(M) v Slough BC

Secondly, as regards the relevance of a local authority’s resources, once eligible needs are assessed (stages 1 and 2), a local authority is under an absolute duty to provide the user with the services that would meet those needs or a personal budget with which to purchase them, regardless of the authority’s financial resources (the third and fourth stages of the process). On the other hand, it may be legitimate for a local authority, in assessing an applicant’s needs and/or eligible needs to take into consideration the availability of its resources: R v Gloucestershire County Council ex parte Barry [1997] AC 584 and KM (raising, but not deciding, questions as to the true interpretation of Barry, particularly in relation to the stage (i) assessment).

Thirdly, as to the correct approach to judicial review of needs and care assessments in the field of adult social care, in KM Lord Wilson stated as follows:

“… in community care cases the intensity of review will depend on the profundity of the impact of the determination. By reference to that yardstick, the necessary intensity of review in a case of this sort is high. [Counsel] also validly suggests that a local authority’s failure to meet eligible needs may prove to be far less visible in circumstances in which it has provided the service-user with a global sum of money than in those in which it has provided him with services in kind. That point fortifies the need for close scrutiny of the lawfulness of a monetary offer. On the other hand respect must be afforded to the distance between the functions of the decision-maker and of the reviewing court; [and some regard must be had to the court’s ignorance of the effect upon the ability of an authority to perform its other functions of any exacting demands made in relation to the manner of its presentation of its determination in a particular case. So the court has to strike a difficult, judicious balance”.

On the facts, KM was a case of a challenge to the monetary offer of direct payment in the case of a claimant who had very severe disabilities requiring very high levels of care and carers. It is also clear that the lawfulness of a monetary offer in a personal budget is subject to judicial review on grounds of Wednesbury rationality or failure to provide reasons.

The Defendant contends that this passage is to be treated with considerable caution, being an obiter passage made without the benefit of argument and that it is wrong in principle. In my judgment, there is no need for the purposes of this judgment to determine the precise status of this passage. In any event the second part of Lord Wilson’s analysis reflects observations made in a number of earlier decisions on the approach to review of adult social care assessments. These include the following. First, the courts should be wary of overzealous textual analysis of social care needs assessments carried out by social workers for their employers with the risk of taking them away from front line duties: Ireneschild, supra, §§ 57, 71 and 72. Secondly, it is not for the Court to be prescriptive as to the degree of detail in an assessment or a care plan – these are matters for the local authority, and if necessary, for its own complaints procedure or resort to the Secretary of State. The court is the last resort where there is illegality: Lloyd, supra, §27. Thirdly, the social worker, in the assessment, is entitled to rely upon what the service user told him at the time (even if the service user later changes evidence); there is no need for precise formulation of assessment of mental health impact in the needs assessment itself: R(GS) v Camden §§31, 33 and 47.’  

Administrative Court

The Administrative Court is part of the Queen’s Bench Division of the High Court (one of the three divisions of the High Court, together with the Chancery Division and Family
Division). The Administrative Court hears the majority of applications for judicial review and also some statutory appeals.
Judicial review is the procedure by which an individual, company, or organisation may challenge the act or omission of a public body and ensure that the public body meets its legal obligations.

Parallel fiduciary duties

[Where] any money or property is concerned, [an attorney appointed to act under a lasting power of attorney] has a fiduciary duty to act as the donor’s agent and secure the proper management of the donor’s estate, for the benefit of the donor. The Mental Capacity Act 2005 furthermore takes the attorney into a new area of responsibility, requiring the attorney to make decisions where the donor lacks capacity, and which must be in accordance with the best interests criteria of the Act. The attorney must therefore take into account matters such as the donor’s past and present wishes and feelings, beliefs and values …’ (Paragraph 3.68 Court of Protection Practice 2017);

BIBLIOGRAPHY

Assessment of Mental Capacity – A Practical Guide for Doctors and Lawyers, 4th edition, The British Medical Association and the Law Society, General Editor: Alex Ruck Keane. BMA and Law Society.

Court of Protection Handbook – a user’s guide. By Alex Ruck Keane, Kate Edwards, Professor Anselm Eldergill, and Sophy Miles. Legal Action Group 2017.

Court of Protection Made Clear – A User’s Guide. Consulting editor: Mr Justice Keehan and by Claire Wills-Goldingham QC, Marie Leslie, and Dr Paul Divall. Bath Publishing.

Court of Protection Practice 2017. General Editor: Gordon R Ashton OBE. Lexis Nexis.

Community Care and the Law. By Luke Clements with Karen Ashton, Simon Garlick, Carolyn Goodall, Jean Gould, Edward Mitchell, and Alison Pickup. Legal Action Group 2017.

Dementia and the Law. By Tony Harrop-Griffiths, Jonathan Cowen, Christine Cooper, Rhys Hadden, Angela Hodes, Victoria Flowers, and Steven Fuller. Jordans.

Mental Capacity Law and Practice, 3rd Edition, General Editor: Gordon Ashton OBE. Jordan Publishing.

Useful links

Administrative Court Judicial Review Guide 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/647052/Admin_Court_JRG_2017_180917.pdf

Care Act 2014: http://www.legislation.gov.uk/ukpga/2014/23/contents/enacted

Care and Support (Eligibility Criteria) Regulations 2015 SI No. 313: http://www.legislation.gov.uk/uksi/2015/313/pdfs/uksi_20150313_en.pdf

Care Act 2014 Explanatory Notes: http://www.legislation.gov.uk/ukpga/2014/23/pdfs/ukpgaen_20140023_en.pdf

Care and support statutory guidance (17 August 2017): https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance

Care and Support (Cross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014: http://www.legislation.gov.uk/uksi/2014/2843/made

Court of Protection Forms: http://hmctsformfinder.justice.gov.uk/HMCTS/GetForms.do?court_forms_category=court%20of%20protection

Court of Protection Rules 2017 – Gateway: https://www.judiciary.gov.uk/publications/court-of-protection-amendment-rules-2017-2/

Court of Protection Rules 2017: https://www.judiciary.gov.uk/wp-content/uploads/2017/11/court-of-protection-rules-2017-final-20171123-2.pdf

Court of Protection Consolidated Practice Directions: https://www.judiciary.gov.uk/wp-content/uploads/2017/11/cop-pds-consolidated-pd-making-document-20171204.pdf

COP Practice Direction amendments: http://www.chba.org.uk/for-members/library/practice-directions-court-notices/cop-consolidated-practice-direction

Court of Protection Practice Directions (Effective 1 December 2017): https://www.judiciary.gov.uk/publications/court-of-protection-practice-directions/

PD 3A: https://www.judiciary.gov.uk/publications/3a-courts-jurisdiction-to-be-exercised-by-certain-judges/

PD3B: https://www.judiciary.gov.uk/publications/3b-case-pathways-effective-from-1-december-2017/

PD4A: https://www.judiciary.gov.uk/publications/practice-direction-4a-hearings-reporting-restrictions/

PD4B: https://www.judiciary.gov.uk/publications/4b-court-bundles/

Court of Protection Transparency Template Order for 2017 Rules: https://www.judiciary.gov.uk/wp-content/uploads/2017/11/cop-transparency-template-order-for-2017-rules.pdf

Court of Protection Rules – Explanatory Memorandum: https://www.judiciary.gov.uk/wp-content/uploads/2017/11/explanatory-memorandum-to-the-cop-rules-2017-20171123.pdf

Court of Protection – Recent cases: http://www.courtofprotectionhub.uk/cases

Court of Protection Judgments: https://www.judiciary.gov.uk/judgments/

Davey v Oxfordshire County Council (Court of Appeal): http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2017/1308.html&query=(davey)+AND+(oxfordshire)

Davey v Oxfordshire County Council (Administrative Court): http://www.bailii.org/ew/cases/EWHC/Admin/2017/354.html

DH Guidance 2013 – Resolving disputes about who is the responsible commissioner- ‘Who Pays? – Determining responsibility for payments to providers’ August 2013: https://www.england.nhs.uk/wp-content/uploads/2014/05/who-pays.pdf

Legislation, Forms and Practice Directions- Court of Protection Handbook: https://courtofprotectionhandbook.com/legislation-codes-of-practice-forms-and-guidance/

MCA Code of Practice: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdf

Mental Capacity Act: https://www.legislation.gov.uk/ukpga/2005/9/contents

Mental Capacity Law Cases: http://www.39essex.com/cop_cases/

NHS – Who pays? Determining responsibility for payments to providers (August 2013): https://www.england.nhs.uk/wp-content/uploads/2014/05/who-pays.pdf

Ordinary residence determinations: https://www.gov.uk/government/collections/ordinary-residence-pages

N (Appellant) v ACCG and others (Respondents) [2017]: https://www.supremecourt.uk/cases/uksc-2015-0238.html

 The Care and Support (Disputes Between Local Authorities) Regulations 2014: http://www.legislation.gov.uk/uksi/2014/2829/pdfs/uksi_20142829_en.pdf

The Care and Support (Cross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014: http://www.legislation.gov.uk/uksi/2014/2843/pdfs/uksi_20142843_en.pdf

Explanatory Memorandum to the Care and Support (Cross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014:  http://www.legislation.gov.uk/uksi/2014/2843/pdfs/uksiem_20142843_en_001.pdf