The Misuse by local authorities of their ‘protection’ powers

Some disabled people and their families have had negative experiences of the way their local authority or local NHS body behave.  In some cases this behaviour feels oppressive and sometimes it feels like being bullied.

In 2011, the Law Commission reported that some families considered that authorities were ‘heavy handed and too eager to intervene without proper legal authority to remove service users arbitrarily from domestic settings’.[1]  In similar terms Lord Justice Munby[2] has warned that social workers must ‘guard against being seen as prying or snooping on the families who they are there to help and support’.  He reminded authorities that they were ‘the servant of those in need of its support and assistance, not their master’ and that:

Nothing is more destructive of the ‘working together’ relationship which in this kind of context, as in others, is so vitally important than a perception by family carers that the local authority is being heavy-handed or worse.[3]

 

A 2016 High Court case[4] reviewed a local authority’s decision to make an autistic child (who was refusing to eat or drink) the subject of a child protection plan. The court found no evidence that her parents were guilty of neglect and held that the mere fact that there was a dispute between them and the medical team over whether the child should be in a residential unit was not a proper basis for the imposition of the plan. The parents had done all they could reasonably do and the local authority’s decision was irrational.

Concerns about the misuse of adult protection measures have also been highlighted by the local government ombudsman. For example, a 2008 report was highly critical of a decision by a council to initiate adult protection procedures in relation to a disabled young man, during a time when there were on-going problems with various aspects of his care plan. In addition to upholding the family’s complaint that they had not received appropriate support services, the ombudsman stated:

Quite apart from any procedural shortcomings, it beggars belief that the referral was made at all, and this was compounded by the fact that the family was informed far too late. I have no doubt that the family found the referral extremely hurtful, not least because it perceived itself as providing care for [the young man] in the absence of any significant care provision by the Council. The adult protection referral and the delay in telling the family of it were maladministration by the Council, which caused the family distress and outrage when they found out.[5]

 

In a 2009 report the ombudsman admonished a social services authority for describing the action of a mother of two severely disabled children as ‘abusive’.  The facts were that due to the ‘totally inappropriate accommodation where they could not be adequately bathed’ the mother had no option but to hose her sons down in the back garden. Noting that the mother’s parenting skills and her commitment to care for her sons had never been in question, the ombudsman considered that the authority’s comments were of ‘breathtaking insensitivity’, and it was maladministration for it to then fail to secure immediate suitable support for the family.[6]

Sadly such reports continue to emerge.  For example:

  • a 2012 investigation which ‘shocked’ the ombudsman concerned a council that commenced an adult protection investigation with no supporting evidence, then tried to defend its failure to treat the injured party fairly and then waged a correspondence ‘war of attrition’;[7]
  • a 2014 report where the authority delayed informing someone who had been told she was a suspected abuser that an investigation had found no evidence to support the allegations – which caused distress and for her ‘to feel like a criminal’;[8]
  • A 2016 report[9] which concerned a parent who was having difficulty managing the needs of her disabled son (exacerbated by the lack of local authority support). In desperation, she left her son with social services and a ‘shared care’ arrangement commenced. When this came to an end, instead of considering another such arrangement the authority’s only offer was for a full-time foster placement (some distance away – making contact difficult). It also threatened to take care proceedings if she challenged the placement.  In finding maladministration, the ombudsman noted that:

the foster placement was a voluntary agreement with the mother, yet the council acted as if it had taken child protection action against her; this amounted to ‘compulsion in disguise’, and led to serious implications for the family unit. 

 

Fabricated illness cases

There are undoubtedly serious cases where parents fabricate evidence to suggest their child has an illness.  There are also cases where a parent is wrongly accused of doing this. A 2010 judgment concerning Coventry City Council,[10] for example, was scathing of the council’s failure to properly check the evidence before it commenced protracted and expensive care proceedings.  The authority cited as evidence (among other things) an ‘alleged overdose’ that the mother said her son had received while in hospital – ie implying that the mother had ‘made this up’.  It was only towards the end of the court proceedings that the council finally realised that the overdose was not fictitious – that it had in fact happened.

A 2016 ombudsman complaint[11] concerned the failure of a local authority to provide support for an adult with complex ‘well documented’ physical and mental health problems who was at risk of homelessness.  The social care assessment identified her as having a fluctuating condition: on some days she could manage but on other days she was unable to get out of bed.  Due to the failure of the authority to provide support she was the subject of a safeguarding referral (by her family).  During the local authority investigations it discovered a music video which showed her doing cartwheels and appearing highly ‘mobile’. As the ombudsman notes, from then on the council ‘decided Miss X was an accomplished actor’ and that this view ‘hijacked the assessment process’ even though it was ‘based on uninformed speculation’.  In fact the medical evidence showed quite clearly that she had (among many conditions) overly loose joints – which accounted for her gymnastic ability.  Instead of seeking to clarify the position the council decided she was exaggerating / fabricating her need and offered no support.    In finding maladministration and recommending significant compensation the ombudsman noted (para 69):

When there was evidence from the hospital to suggest the Council’s assumptions about Miss X were wrong it still did not do a proper assessment because of its belief that Miss X was ‘acting’. It held strategy meetings but the Council’s views of Miss X affected this process. This was compounded by the fact the Council shared this information with other agencies and professionals present at the meeting. It recorded in its notes “all aware she is an actor”. It also gave this information to clinicians at the hospital. … . Even if Miss X was an actor she can still have care and support needs.

 

A common thread

A common thread with almost all of the above cases is that they arose out of a dispute between the disabled person (and/ or their family) and the council about its failure to provide an adequate care package.   Instead of reviewing their decision not to provide the support that was being requested, the councils responded by misusing their coercive powers.  In the highly critical 2010 Coventry City Council judgment,[12] for example, the children’s representative identified the most pressing need was to ease ‘the current crowded circumstances of the family home’ (para 105).  Although the council accepted this was a problem it asserted (wrongly[13]) that it had ‘no ability to pay for any extension to the house, nor any department to which they could even apply’.[14]  Instead the authority embarked on care proceedings which included almost 5,000 pages of evidence (in twenty lever arch files) and incurred ‘substantial’ legal costs – almost certainly in excess of £250,000.[15]

 

Challenging heavy handed behaviour

The Cerebra Accessing Public Services Toolkit has some valuable advice on how to challenge local authority and NHS action, which is experienced as oppressive.

The nine ‘key factors’ detailed in pages 8 -12 of the Toolkit are all relevant – and particularly so:

  • keeping detailed records (page 9);
  • the importance of ensuring that ‘things said’ are recorded in writing (see page 10 and the precedent letter 3 on page 31); and
  • complaining early (page 18).

Not infrequently bad behaviour of this kind by a public body stems from a lack of experience / expertise and an inability to admit mistakes.  In particular a lack of understanding of: the challenges that confront many disabled people and their families; the struggle / frustrations they experience by not being ‘listened to’; and the difficulties they experience in obtaining the support they need.  Unfortunately human nature is such that we don’t always admit to inexperience or a lack of expertise.  Sadly some professionals are too quick to think ‘bad parenting’ when encountering a child with challenging behaviour and are prone to blame the disabled person (and/or their family) if they fail to respond to the chosen treatment or if they complain that the support package they receive is inadequate.

Professionals, through their training, should be aware of these failings.  However if you experience behaviour of this kind and a complaint results, it may be worthwhile including in the ‘what needs to be done’ section[16] a requirement that the public body ensure that its staff are appropriately trained – or indeed – undergo retraining.

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[1] Law Commission, Adult social care, Law Com No 326 HC 941, 2011 paras 9.54–9.55.
[2] A Local Authority v A (A Child) [2010] EWHC 978 (Fam); (2010) 13 CCLR 404, at paras 50–51.
[3] A local authority v A [2010] EWHC 978 (Fam), (2010) 13 CCLR 404 at [98].
[4] R (O) v. Peterborough CC & Cambridgeshire and Peterborough Foundation NHS Trust  QBD (Admin) [2016] EWHC 2717 (Admin); (2016) 19 C.C.L. Rep. 548
[5] Complaint no 07/B/07665 against Luton BC, 10 September 2008, para 37.
[6] Complaint no 07C03887 against Bury MBC, 14 October 2009, para 43.
[7] Complaint no. 07C13163 against Birmingham City Council, 8 October 2012, paras 69–74.
[8] Joint NHS and Local Government Ombudsman Report on complaint no 12 004 807 and 12 013 660 against Essex CC, Suffolk CC, North Essex Partnership NHS Foundation Trust and Norfolk and Suffolk NHS Foundation Trust, 15 January 2014.
[9] Complaint No. 15 003 629 against Northamptonshire County Council (25th October 2016).
[10] Re X, Y and Z (Children) [2010] EWHC – in subsequent proceedings the local authority and the expert witness were named although the President of the Family Division expressed the view that the ‘swingeing criticisms’ of the expert were inappropriate – see X, Y & Z v A Local Authority [2011] EWHC 1157 (para 63).
[11] Complaint against West Sussex CC 5/12/2016 5th Dec 2016.
[12] Re X, Y and Z (Children) [2010] EWHC – in subsequent proceedings the local authority and the expert witness were named although the President of the Family Division expressed the view that the ‘swingeing criticisms’ of the expert were inappropriate – see X, Y & Z v A Local Authority [2011] EWHC 1157 (para 63).
[13] Support of this kind can be provided under a number of statutory provisions including under; the Chronically Sick and Disabled Persons Act 1970 section 2; the Children Act 1989, section 17; the Housing Grants, Construction and Regeneration Act 1996 section 23; and Article 3 of the Regulatory Reform (Housing Assistance) (England and Wales) Order 2002 SI No 1860 – see L Clements and S McCormack Disabled Children and the Cost Effectiveness of Home Adaptations & Disabled Facilities Grants: a Small Scale Pilot Study (Cerebra 2017) Appendix 1.
[14] Research suggests that grants to support home adaptations for disabled children can be highly cost effective – yielding for example a five-fold costs saving for the local authority – see  L Clements and S McCormack Disabled Children and the Cost Effectiveness of Home Adaptations & Disabled Facilities Grants: a Small Scale Pilot Study (Cerebra 2017) para 5.15 – 5.16.
[15] In addition to its own costs in these proceedings the authority was required to contribute £100,000 towards the costs of the parents (whose costs were in excess of £300,000) and the authority then faced two subsequent cases, one seeking to have it named (BBC v Coventry City Council and Others (Care Proceedings: Costs: Identification of Local Authority) [2011] 1 FLR 977) and one seeking to have their expert named (Coventry City Council v X, Y and Z Care Proceedings: Costs) [2011] 1 FLR 1645).
[16] See the Cerebra Accessing Public Services Toolkit precedent letter 1 page 29.