The Cheese Sketch
The Monty Python Cheese sketch and social care have a lot in common. In the sketch John Cleese enters a cheese shop and asks for various cheeses. The proprietor (Michael Palin) comes up with a series of different excuses for not having any of them. The reasons why people are not able (or eligible) to have their legitimate care needs met by councils / health bodies would tax even Michael Palin’s extraordinary imagination.
Unfortunately the ombudsmen also plays this game – with a daunting collection of reasons for not investigating complaints: just about every excuse apart from the “sorry our budget has been slashed and we just can’t help.”
A recent local government ombudsman decision[1] has that depressing Cheese sketch feel. The complainant sought (among other things) compensation for a series of public law failures by a council. The ombudsman refused to consider this aspect on the ground that ‘such a claim would be best served by legal action’. Presumably this means that the ombudsman believes that the complainant should seek a judicial review: a legal action which is famous for not awarding compensation for social care complaints[2] (on the basis that ‘compensation can be obtained from the ombudsman’).[3] A tad circular you might think?
For many disabled people and their carers there is no effective remedy when a public body fails to meet their essential needs. Judicial review is generally beyond their means (and does not provide for compensation) and council / NHS complaints frequently drag on inconclusively: disempowering and exhausting in equal measure. Even when the ombudsman can be beguiled into considering a complaint, public bodies can simply refuse to comply with the recommendations.[4]
The time would seem to be right for this deep seated injustice to form the basis of a complaint to the UN Convention on the Rights of People with Disabilities Committee. The justice system should accommodate the particular needs of disabled people and should deliver effective remedies. It is however inaccessible (article 3 and article 5) and unaccommodating (article 13). This cumulative failure materially undermines the ability of disabled people to live independently and to be included in the community (article 19). The UK has ratified the Optional Protocol to the Convention opening the door for disadvantaged disabled people to complain directly to the Committee on the Rights of Persons with Disabilities. The Protocol makes clear that complainants need not exhaust all domestic remedies where these are ‘unlikely to bring effective relief’. It is indeed difficult to think of any domestic social care law remedy that is ‘likely to bring effective relief’.
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[1] Complaint No. 16 008 422 against Staffordshire County Council 4th July 2017.
[2] See for example Katie Scott and Tom Tabori Alternatives to litigation in public law disputes (39 Essex Street).
[3] Anufrijeva v Southwark LBC [2003] EWCA Civ 1406, 78.
[4] See for example Second LGO report issued on Shropshire Council after it fails to agree to recommendation (LGO 2014) and the LGO Review of Local Government Complaints 2014-15 (2014) noted a ‘a small but unprecedented increase in the number of councils refusing to implement our recommendations’ (page 10).
Posted 15 October 2017.
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