Community Care Law Reports - latest cases

Stephen Cragg KC, general editor of the Community Care Law Reports (CCLR), reviews the six cases featured in the March 2023 issue.  CCLR is published four times a year by the Legal Action Group and subscriptions are available in hard copy and digitally.

A number of our cases in this edition concern payment of grants and benefits to vulnerable people for living and disability expenses.

The first is R (CB) v The Secretary of State for the Home Department [2022] EWHC 3329 (Admin) in which there was a challenge to the Home Secretary’s failure to uprate support paid to asylum seekers over a period of time, brought by a mother who had three dependent children. The problem was that, in an annual review, the Home Secretary had, firstly, changed the methodology by which support payments were calculated (leading to lower payments than otherwise would have been the case) and then, later, ignored advice from her own department that the rates needed to increase to meet the legal obligation to meet the costs of essential living for asylum seekers. The High Court decided that no good reason had been advanced for changing the way that support was calculated, and so the decision was irrational. The Home Secretary had then simply ignored the statutory duty to keep the rates under review, which was also unlawful. Unusually, and because the Home Office had itself accepted that rates should rise, the Court made a mandatory order that this should happen immediately. 

The next case is R (P) v LB Croydon [2022] EWHC 2886 (Admin) in which a local authority’s decision to fund 35 hours per week of support for a disabled adult (at a cost of £437.50) was found to be unlawful. The claim was made by an autistic young woman for whom the local authority had carried out a needs assessment indicating a support budget of £1200 per week. The local authority was entitled not to adopt the indicative budget, but was required to make a reasoned, fair and reasonable decision about how it was instead going to meet the claimant's needs, taking account of the support from her family, and in consultation with the family (which had not happened). The local authority had not demonstrated to the court’s satisfaction that any such reasoned decision was ever made, or provided to the family. The court found that the need for appropriate reasoning and explanation was particularly acute where the local authority was radically departing from a recent recommendation contained in its own needs analysis.

In R (Gulrez) v Redbridge LBC [2022] EWHC 2908, the benefit under consideration was the Disabled Facilities Grant (DFG). The claimant was a wheelchair user who applied, on the advice of an occupational therapist,  for a DFG for a backup stairlift in his home for when his existing through floor lift broke down. The local authority had a policy (albeit unwritten) of not approving DFGs for backup provision even where this would fulfil the statutory intention of making properties as safe as reasonably practical for disabled people. The court found that the policy was unlawful and there was no reason why a backup provision could not provide additional safety. Once the statutory test for a grant was met then there was a duty on the local authority to provide the grant.

A further case concerning provision of support and accommodation to disabled people is R (Dwayne Campbell) v LB Ealing [2023] EWHC 10 (Admin) in which a local authority’s decision to withdraw funding of bed and breakfast accommodation provided under the Care Act 2014 was found not to be unlawful. The claimant was a disabled unemployed and homeless man who was being provided with accommodation pursuant to s19(3) of the Care Act 2014, but the local authority claimed this was only pending an assessment and he would not be further eligible for accommodation under the 2014 Act as he was owed duties under the Housing Act 1996. The court found that the local authority was entitled to take that view, as a standalone need for accommodation is not a need for care and support for the purposes of the 2014 Act. Section 23 of the 2014 Act provides that a local authority ‘may not meet needs under section 18 to 20 by doing anything which it is required to do under the Housing Act 1996…’.  The court said that local authorities have a power to provide accommodation under the 2014 Act in circumstances where accommodation is required to effectively deliver care and support, but this power is not unfettered and is limited by the application of section 23. The local authority’s conclusion that it did not owe the claimant a duty to provide accommodation under the 2014 Act in order to meet his accommodation related needs was lawful.

R (Kays) v Secretary of State for Work and Pensions

[2022] EWCA Ciiv 1593 concerned a challenge to an amendment made to the Universal Credit Regulations 2013 requiring disabled students to have an assessment of limited capability for work and work-related activity before making an application for universal credit. The appellant was a disabled student who had been refused universal credit because he had not been assessed as having limited capability for work before making his claim. The Court of Appeal found that the Secretary of State was entitled to make regulations with the aim of excluding those in full-time education from universal credit in most situations. The approach was found not to be discriminatory. Parliament had determined that persons in full-time education should not be eligible for universal credit unless regulations made an exception, and the Secretary of State’s regulations distinguished between two groups of disabled students entering full-time education. Those straight from school were expected to finance their studies from the student support system and specific benefits such as disabled students' allowances. A second group already receipt universal credit, which included additional components to reflect the fact that they had limited capability for work or work-related activity. In deciding the policy the public sector equality duty had been lawfully applied.

The conditions in which care home users are provided for can crop up in a number of different legal scenarios. In London Fire Commissioner v BUPA Care Homes (ANS) Ltd [2022] EWCA Crim 1508, the Court of Appeal considered an appeal in a criminal case where Bupa had been convicted of failure to make and give effect to appropriate arrangements in relation to preventative and protective measures. The case related to the death of a disabled man and wheelchair user, who used paraffin based emollient creams as part of his care, but liked to smoke outside the care home where he lived. One morning he was left alone outside the home, caught fire and was killed. Bupa was fined £937,500.

Bupa challenged the factual basis upon which the judge had sentenced the company following a Newton hearing. However, the Court of Appeal refused permission to appeal, finding that the failure to watch the resident while he was smoking was a cause of the incident. The court found that Bupa had a duty to ensure that its residents smoked safely even if this required proper supervision of the smoker.  The court noted that fire is an especially potent hazard and the nature of the risk against which protection is required is the risk of death or serious injury. Serious breaches of fire safety regulations will be met with severe penalties.