Unfortunately … there is no legal footing to justify us not funding

 

R (CP) v. NE Lincolnshire Council[1] is an important Court of Appeal decision.  On one level the judgment demonstrates the complexity of the care / education arrangements for young people moving into adulthood – and on another it makes the simple point that councils must meet the needs of disabled people.

The case concerned a young adult described in the following terms (para 3):

CP is a 22-year old woman with global development delay, learning difficulties and an autistic spectrum disorder. She does not communicate verbally. She can communicate to an extent by behaviour, gesture and vocalisation. She cannot be left alone at any time, is doubly incontinent and requires assistance with washing and dressing. Her behavioural difficulties can make her challenging. She wakes every night and requires a carer to be with her. She uses a wheelchair when in the community. She lives with her parents in Lincolnshire

The judgment describes the family having to battle at every stage to get an EHC Plan for their daughter post-16 and for the education, health and social care elements. It is stark evidence – if evidence is needed – as to the enormous barriers families experience (not least due to the legal complexities) and of the way councils approach claims of this kind. At para 27 the judgment refers to an email the council sent to relevant staff saying “Unfortunately it transpires that there is no legal footing to justify us not funding this provision”. Lord Justice Haddon-Cave, in his judgment, put this in context, observing (para 67) that the Council resisted the claim ‘at every turn and conducted what turned out to be a fruitless rear-guard action’.

By the time of the Court of Appeal hearing, council funding had been secured for the young adult’s needs and the essential question was whether it should repay her family for the costs of past support (ie prior to the council agreement to fund). The support throughout the relevant period had been at a centre run by a charity which had been set up and was organised by her father.

The court held (para 74) that the centre met both the young adult’s educational and social care needs – noting that ‘the fact that a provision is “education and training” under s.21 of the CFA 2014 does not mean that it cannot also provide an element of social care; and vice-versa. The two matters are complimentary, not mutually exclusive.’

It rejected (at para 85) as ‘misconceived’ and ‘as having no basis’ the council’s claim that the father was the ‘real claimant’ by alleging that he was in effect that he was ‘using the proceedings inappropriately to profit from the claim’ since [the centre) was a charity organised and controlled by him.

From a legal perspective, a particularly welcome finding of the court concerns the council’s argument that the applicant could not recover the sums unpaid because a ‘breach of a public law duty did not give rise to private law rights’. The court rejected this as ‘specious’. What was being asserted were not ‘private law rights’ but like ‘other social security and benefit claimants, she is simply asserting an orthodox public law right to be paid monies due to her under the Care Act 2014 and which the Council has unlawfully failed or refused to pay’.

For good measure the judgment also stated in forceful terms (para 82):

A breach of a statutory duty is a breach of statutory duty. It is, by definition, unlawful conduct. Unlawful conduct by a public body cannot merely be discounted or ignored. Moreover, s. 26 is no minor matter. A local authority’s statutory duty under s. 26 of the Care Act 2014 to provide a personal budget to meet a person’s care and support needs is fundamental to the operation of the care and support scheme which the Care Act 2014 underpins.

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[1] R (CP) v. NE Lincolnshire Council [2019] EWCA Civ 1614 accessible at https://www.bailii.org/ew/cases/EWCA/Civ/2019/1614.html.
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