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USING THE LAW TO CHALLENGE UNLAWFUL DECISIONS: PRACTICAL CONSIDERATIONS. Mark Shrimpton Director of Services & Information Disability Rights UK. Summary. 1. Who can bring the challenge, and how to fund it 2. How to challenge decisions by public authorities 3. Case Studies. Background.
Mark ShrimptonDirector of Services & Information
Disability Rights UK
1. Who can bring the challenge, and how to fund it
2. How to challenge decisions by public authorities
3. Case Studies
We all understand that times are tough, and that the pressure on local authority and PCT funds is significant.
That having been said, local authorities and PCTs need to make the tough decisions on funding, looking at what is in the individual’s best interests and with the legal duties as set out firmly in mind – otherwise the ‘law’ of unintended consequences is very likely to apply.
- Insurance (Directors and Officers/Trustees)
- Indemnity from the organisation itself
- Under S.29 Charities Act 1993 Advice from Charity Commission gives protection to Trustees from personal liability for costs, if satisfied that proposed action is:-
- Reasonable use of charitable funds
- Good prospects of success
- Insurance against adverse costs (ATE)
- Protective Costs Orders (PCO)
- Still a developing concept. In essence it means that the Court orders a limit to costs recovery early on in the case, certainly for the Claimant organisation but possibly for both sides.
- Means that regardless of the outcome of the case, there is certainty as to the ‘worst case scenario,’ but there may still be the possibility of recovering all or part of the costs incurred from the other party.
- by written submissions
- or additionally orally through an advocate
- acting outside or beyond powers given (ultra vires)
- acting irrationally or perversely
- procedural impropriety
Victory will lead to the decision being overturned
Often negotiations during litigation may get you the result you want
NB: overturning the decision may still mean that if the public body takes the decision again, it reaches the same conclusion that you objected to in the first place
1. Challenge to Isle of Wight’s policy towards adults in need of social care
2. Challenge to the legality of the consultation undertaken by the London Borough of Hillingdon to close 3 adult learning disabled day centres
3. Challenge to the amendment by West Berkshire Council to their charging policy
What does the duty entail?
3 Claimants, each of whom are disabled adults who live in Hillingdon. All three of them are in their mid-40’s and live at home and are cared for by their respective families.
They currently attend one or other of three day centres in Hillingdon (Phoenix, Woodside or Park View) all day 5 days per week. This is a service that they rely upon to meet their assessed needs, and which provides their parent/carers with some much needed respite.
Judicial Review proceedings were brought to challenge Hillingdon’s decision of 26 January 2012 to close those three day centres and, instead, open a new facility (offering many fewer places) at Queenswalk.
It was argued that the decision taken by Hillingdon in January 2012 was unlawful because:
(a) The consultation on which it relied did not meet the basic requirement that consultees must be provided with sufficient information to respond meaningfully to what is being proposed.
(b) Councillors did not have or obtain sufficient information about the impact of what was being proposed when they took their decision.
(c) There was an absence of any meaningful information about how what was proposed would impact on disabled people such that the Council did not lawfully discharge the public sector equality duty (PSED).
In particular it was argued that the Equality Impact Assessment (EIA):
Contained no evidence-based information about the specific impact on disabled people of the proposals;
Did not explain the nature of the needs of people who would lose services,
Did not explain what the detriment would be to disabled people;
Did not state how many disabled people would be detrimentally affected; and
The suggestions in the EIA for mitigating the effects of the proposal were accordingly made without a proper understanding of the potential detriment.
On 25 July 2012, HH Judge Birtles QC sitting as a Deputy High Court Judge in the Administrative Court granted permission for that challenge on all 3 grounds of claim.
Hillingdon shortly afterwards agreed that it will consider afresh the question of whether to decommission the three day centres, and the Judicial Review proceedings were withdrawn.
Hillingdon commenced new consultation on 1 November 2012 which will consult again on the proposals, having undertaken a number of steps including an assessment of the needs of those affected . . . .
Assessment – s47 NHSCCA 1990
LA absolute duty to meet eligible needs
Financial assessment should only take place after assessment of need
Services should not be delayed to await financial assessment (Prioritising Need)