Policy Partners Project - Case Law and LGSCO Reports

This section contains information about recent case law and reports from the Local Government and Social Care Ombudsman in relation to complaints made against local authorities. Click on the links below to view the relevant sections:

Case Law;
Local Government and Social Care Ombudsman Reports.

Case Law

Click here to view key Mental Capacity Law Cases (39 Essex Chambers) and England and Wales Court of Protection Decisions (BAILII)

July 2022: Care Act Interpretation

A council wrongly stopped funding family holidays for two disabled brothers by adopting a “restrictive and wrong” interpretation of the Care Act 2014. The Court of Appeal rejected an appeal brought by Suffolk County Council against a High Court ruling last year that quashed its 2020 decision ending funding for the holidays for the men.

March 2022: Deprivation of Liberty Safeguards

A man, who has autism, was unlawfully deprived of his liberty in a care home for seven years by Lancashire Council. The Council admitted breaching his human rights and agreed a £200,000 settlement and a payment of £155,000 for a deputy to manage his property and affairs on his behalf. This was approved by the High Court.

February 2022: Ordinary Residence

On 22 December 2021, judgment was handed down in favour of the Secretary of State in the case of R (Worcestershire County Council) v Secretary of State for Health and Social Care and Swindon Borough Council (‘the Worcestershire case’). It is understood that Worcestershire County Council lodged an application for leave to appeal in the Supreme Court. See DHSC’s position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case and September 2021 below.

November 2021: Mental Capacity and Sexual Consent

The Court of Appeal has overturned a Court of Protection judgment which had concluded that JB had capacity to consent to sex, and that understanding the need for a sexual partner to give and maintain consent was not “relevant information” for the purposes of assessing capacity. The Court of Appeal found that people need to understand that partners must be able to give and maintain consent to be found to have capacity to engage in sex. See A Local Authority v JB.

September 2021: Ordinary Residence

On 22 March 2021, judgment was found in favour of Worcestershire County Council in the case of R (Worcestershire County Council) v Secretary of State for Health and Social Care (DHSC) and Swindon Borough Council (‘the Worcestershire case’). The Secretary of State lodged an application for leave to appeal in the Court of Appeal, and permission to appeal has been granted. Please read the latest from DHSC on this matter: DHSC’s Position on the Determination of Ordinary Residence Disputes Pending the Outcome of the Worcestershire Case, published in August 2021.

Click here to view previous amendments

May 2021: Disabled people’s access to sex worker services

Care workers who help disabled people access sexual services are not breaking the law, the Court of Protection has ruled. Mr Justice Hayden said that a care plan to facilitate a man’s contact with a sex worker would not be contrary to section 39 of the Sexual Offences Act 2003.

January 2021: AMHP Assessments during the Pandemic

The High Court has ruled, Devon Partnership NHS Trust and Secretary of State for Health and Social Care NHS Commissioning Board, that it is unlawful for approved mental health professionals to use video assessments for applications to detain people under the Mental Health Act 1983. This overturns NHS England legal guidance permitting video MHA assessments by AMHPs and doctors during the pandemic.

January 2021: COVID-19 Vaccine in Best Interests

The Vice-President of the Court of Protection ruled, E and London Borough of Hammersmith and Fulham, that it is in the best interests of an 80-year-old care home resident with dementia and schizophrenia to receive the Covid-19 vaccination, despite her son’s objections

June 2020: Breach of Human Rights

The Court of Appeal overturned a previous court decision which breached the human rights of a disabled man, with mental capacity who was forcibly removed from his home and taken to hospital. The judgement, Mazhar v Birmingham Community Healthcare NHS Trust, includes lessons for social workers and legal advisors using inherent jurisdiction.

April 2020: Undertaking Assessments Remotely

P’s daughter applied to the court to achieve his discharge from a care home where he was residing and a declaration that it was in his best interest to return home with a package of care: BP v Surrey County Council & Anor [2020] EWCOP17

The application had arisen because of the decision of P’s care home to suspend all visits from family members because of the coronavirus pandemic. It was alleged those constrictions implemented by the care home constituted an unlawful interference with P’s Article 5 ( right to liberty) and Article 8 (right to family).

The Court ruled that P should remain at the care home and the outstanding capacity should be undertaken via Skype or Facetime.

March 2019: The Islamic Faith and the Mental Capacity Act

Click on the link to an article in the BJPsych Bulletin which reviews a Court of Protection case (2017) which assessed and decided issues relating to the Islamic faith and the Mental Capacity Act 2005.

July 2018: End of Life Care for Persons in a Vegetative State

The Supreme Court ruled (An NHS Trust and others v Y) that where a person is in a vegetative state, their family will no longer have to consult a judge when deciding to stop their end of life care if the medical team are also in agreement. Even if the person has not made an advance decision to refuse treatment, where the family and medical team agree it is in the person’s best interests, artificial feeding and hydration can be stopped.

January 2018: Council loses Case regarding taking Personal Injury Awards into account in Financial Assessments

The High Court has thrown out an application for a judicial review into whether personal injury awards can be taken into account during financial assessments of people with eligible care needs. Click here to view the ruling: Court rejects challenge to LGO finding on personal injury awards and care needs.

November 2017: Council loses re Section 117 Funding

A council lost an appeal over whether a person who has been compulsorily detained in a hospital for mental disorder under the Mental Health Act 1983 and has then been released from detention but still requires after-care services’ (s117) is entitled to require his local authority to provide such services at any time before he has exhausted the sums received in damages from his personal injury claim. Click here to view the ruling: Council loses Appeal over After-care Services and Personal Injury Damages

September 2017: Court of Appeal finds for Council in first appeal on Care Act 2014 provisions

The Court of Appeal has dismissed a disabled man’s (Luke Davey) appeal over a decision by a county council to reduce his personal budget from £1,651 to £950 per week and revise his care and support plan. Click here to view the ruling: Court of Appeal finds for council in first appeal on Care Act 2014 Provisions. Click here to view Lessons for Social Workers from Luke Davey’s Care Act Appeal (Community Care)

Local Government and Social Care Ombudsman Reports

LGSCO reports are usually published some months after the decision date.

May 2022: Equal Access, Getting it Right for People with Disabilities (Focus Report, Learning Lessons from Complaints)

This report shares the learning from LGSCO investigations to help councils, and other local services, meet their legal duties to ensure everyone has an equal opportunity to access their services, whatever their needs. The report identifies a number of positive steps councils can make to improve services, including reviewing staff training needs around the Equality Act 2010, incorporating Equality Act duties in contracts when commissioning services from external suppliers, and retaining alternative contact methods for people with alternative needs when moving services online.

November 2021 (decision date): Mr X complained about the quality of care his wife received at a Lancashire County Council commissioned care home. The LGSCO found the care home and the Council were at fault and that the safeguarding investigation failed to uncover harmful care, relying heavily on provider evidence.

October 2021 (decision date): A woman was left malnourished and without the support she needed for her medical conditions because Gloucestershire County Council ignored professional advice, a Local Government and Social Care Ombudsman investigation found.

September 2020 (decision date): An elderly couple of 59 years were split up with little regard for their welfare by Royal Borough of Windsor and Maidenhead, the Local Government and Social Care Ombudsman has found.

Click here to view previous amendments

November 2019 (decision date): The LGSCO found fault with Nottinghamshire County Council after a man with autism had to rely on his parents to part-fund his care when it cut his package without identifying a suitable alternative. This appeared to be for financial reasons. The LGSCO report criticised the Council for not reviewing the man’s care package for three years and for reducing it, due to the cost being above its standard rate.

November 2019 (decision date): The LGSCO heavily criticised Derbyshire County Council for not putting proper safeguarding measures in place for a woman in one of its care homes before she fell and died. The investigation found numerous missed opportunities to assess and try to prevent the woman’s pattern of falls. It criticised it for not doing enough to monitor her nutrition, hydration and low weight, which the inquest found was a factor in her death. It also found fault for not keeping accurate and up-to-date records of other allegations the woman and her family made about incidents in the home.

June 2019 (decision date): The LGSCO upheld Mrs X’s complaint that Essex Council refused to pay for one to one observations because she self-funded her care. Mrs X said the Council did not consult with her son or daughter before it put the observations in place, which were required as part of a safeguarding plan.

June 2019 (decision date): The LGSCO found that Bolton Council was at fault regarding lack of support Ms X received to recruit a personal assistant, and regarding an assessment by the Council which reduced her support by over 60%.

March 2019 (decision date): Mr F complained about the quality of home care provided by Reading Council’s care provider, Radis Group, to his late mother, Mrs B. In particular that the carers failed to call 999 when Mrs B was ill. The LGSCO made recommendations in relation to: training of carers in relation to emergency procedures and action when an adult is unwell; training of carers regarding record keeping; review of the Council’s complaints procedure; accuracy of safeguarding enquiry reports.

November 2018 (decision date): The Local Government and Social Care Ombudsman found that Bexley Council delayed making appropriate arrangements for the transition of Ms X’s disabled child to adult services. The complainant said this caused avoidable distress because there has been no overnight respite care for 16 months. the LGSCO found the Council were at fault causing injustice and recommended a way to resolve the complaint.

August 2018 (decision date): The Local Government and Social Care Ombudsman found that Mr B was caused “distress and confusion” after Staffordshire Council did not properly inform him about new charges of his care package, which increased his personal contribution by nearly £70 per week.

April 2018 (decision date): Council ignores medical evidence when deciding man’s housing application: Croydon council failed to take into account a man’s life-threatening health conditions – despite receiving letters from his specialists – when it decided the type of homes he could apply for, the Local Government and Social Care Ombudsman has found.

February 2018 (decision date): Mr N, who has autism and other needs, and his mother had been in receipt of support which included one-to-one care, transport costs and a placement in a care centre. However, the London Borough of Bromley significantly cut the level of support at short notice, without reassessing the family’s needs, leaving the man’s mother to support her son during the holidays. The Ombudsman found fault causing injustice and recommendations are made in the report.

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Case Law and Ombudsman Reports

Case Law

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