Community Care Law Reports March 2025

The March 2025 edition of the Community Care Law Reports published by the Legal Action Group is available now. Produced four times a year and featuring six fully reported and headnoted leading community care cases in each edition, and a legal update from leading practitioner Shu Shin Luh, also from Doughty Street. My editorial as General Editor introducing the current crop of cases is below.  They include cases about providing care to people who lack capacity, NHS continuing health care, services for children in need and duties owed to asylum seekers with disabilities. To subscribe to CCLR see here

https://www.lag.org.uk/subscriptions/205459/2025-community-care-law-reports-subscription

In R (TW) v Essex CC [2025] EWCA Civ 4 the Court of Appeal provided a significant decision on the obligations of local authorities to children who may be children in need under the Children Act 1989 (CA 1989). The local authority succeeded in arguing that it did not owe ongoing obligations to a young person as a ‘former relevant child’. The appellant argued that he had been accommodated as a child in need pursuant to  s20 CA 1989. The Court of  accepted the local authority’s argument that helping appellant to obtain accommodation through a third party provider did not mean he had been treated as a child in need or that the accommodation was provided under the CA 1989. The local authority had acted rationally in considering that he was not a child in need within s17(10) CA 1989. The case underlines the primacy of the decision-making by social workers on issues as to whether a child is a child in need, in what are difficult and fact-sensitive circumstances, while emphasising the importance for local authorities of detailed documentation of social work decisions, which may later be open to scrutiny.

A further case in the Court of Appeal in this issue is MacPherson v Sunderland City Council [2024] EWCA Civ 1579,  where the court addressed concerns about the capacity of a mother of a protected person (P), to conduct her appeal against a four-month imprisonment sentence for contempt of court. ​The mother had breached injunctions by posting material about P online. ​ Her lawyers raised concerns about her mental capacity, suggesting a possible delusional disorder affecting her ability to participate in the proceedings. ​ Despite her refusal to cooperate with a capacity assessment, a psychiatric report indicated a mental disorder. ​ The court, under the Mental Capacity Act 2005, decided that it had the power to make an interim declaration that there was reason to believe the mother lacked capacity, and referred the matter to a judge for a full capacity determination. ​ The court stayed her sentence pending this assessment but maintained the injunctions against her. ​ It was critical that she was given further opportunity to be involved in any assessment.

In R (AYW and ACR) v Secretary of State for the Home Department [2024] EWHC 3291 (Admin), the claimants were a Mexican national and her severely disabled five-year-old son, who brought proceedings against the Secretary of State for the Home Department for failing to provide adequate asylum accommodation. The claimants arrived in the UK in 2021 and were provided hotel accommodation in Southwark under the Immigration and Asylum Act (IAA) 1999. However, this accommodation was inadequate for ACR's needs, as he required wheelchair accessibility and a wet room. Despite the Secretary of State being aware of this inadequacy for over a year, little action was taken. The court granted a mandatory order requiring the Secretary of State to find suitable accommodation. The court underlined the position that when a breach of statutory duty is established, the normal position is that a mandatory order requiring compliance should be granted unless compliance would be impossible, meaning that all reasonable steps had been taken to secure adequate accommodation. In this case, minimal efforts to secure suitable accommodation had been made despite evidence showing that adequate accommodation was potentially available in the area. The court thus ordered the Secretary of State to obtain wheelchair-accessible accommodation in and appropriate London area within a specified time scale.

In Oldham Metropolitan Borough Council v (1) KZ (2) RK [2024] EWCOP 72 (T3) KZ, a profoundly deaf young adult who communicates primarily through British Sign Language (BSL), initiated proceedings regarding potential deprivation of liberty orders once he turned 18.  KZ's had varying capacity, and so he generally had capacity to make decisions about his residence, care arrangements, and family contact, but lost that capacity when he was upset or agitated. The local authority sought anticipatory declarations allowing social workers and support staff to identify when KZ becomes agitated and loses capacity, and to implement guidelines. The court granted these declarations, finding they provided a proper legal framework for KZ's care team, authorising temporary periods of deprivation of liberty and protecting staff from civil liability. The court noted broader implications for assessing deaf individuals' mental capacity: assessments should be conducted by professionals capable of communicating in BSL, and who have experience engaging with the deaf community. This case established important principles for addressing fluctuating capacity in vulnerable individuals.

R (Simpson) v NHS Mid and South Essex Integrated Care Board [2024] EWHC 3063 (Admin) involved a 35-year-old woman with complex physical and mental health conditions who challenged the adequacy of her NHS funded Continuing Healthcare (CHC) package following reassessment. The claimant required 24-hour care and used an electric wheelchair. The reassessment removed several previously funded services: travel and hotel expenses for medical appointments, massage therapy for pain management, and implicitly discontinued support for her office space (used by carers for breaks, meetings, and storing confidential documents) and personal assistant (who provided administrative support). The claimant challenged a number of aspects of the package including inadequate nursing care for her complex medication regime; failure to fund a personal assistant, failure to fund office space, removal of massage therapy funding, failure to fund her electric wheelchair; and removal of travel expense funding.

However, the court dismissed the claim, holding that ICB decisions about reasonable requirements for CHC involve evaluative judgments subject only to review on reasonableness grounds. While such review must be intense given the profound impact of failing to meet eligible needs, courts must respect the functional distance between decision-maker and reviewing court. In this case the defendant's evaluative judgments were not unreasonable, and further there was no requirement to inform the claimant of potential funding withdrawals during assessment. 

R (A) v North Central London Integrated Care Board [2024] EWHC 2682 (Admin) is another case concerning NHS CHC, this time for an 11-year-old with severe disabilities. The claimant challenged an integrated care board (ICB) on three grounds: failure to provide a lawful health care plan, irrational decision to change care providers, and entitlement to restitution for privately funded care. The court partially allowed the claim, finding that while there is no general statutory requirement for a health care plan in NHS CHC for children, the ICB did have a duty to arrange the health care specified in Section G of the child's education health and care (EHC) plan, which included a health care plan. The ICB failed in this duty by relying on an outdated care plan and only requesting an updated plan five months after the EHC plan was finalized, and only when considering terminating the provider's contract. However, the decision to terminate the previous care provider's contract was reasonable given legitimate concerns about the provider's performance and the ICB had also engaged in substantial transition planning to secure a new provider. The claimant also made a claim in restitution for unjust enrichment,  but the court determined that the claimant had not suffered pecuniary loss that could ground such a claim, and any enrichment of the ICB (for instance from not bearing the cost of providing services),  was not at his expense. If the parents wished to recover costs spent on care, they would need to pursue a separate civil claim in county court.