Derbyshire’s Care Act ‘easements’ proposed judicial review

Statement regarding Derbyshire Care Act ‘Easements’ proposed Judicial Review

Specialist public law and human rights law firm Rook Irwin Sweeney have today confirmed that following a number of concessions by Derbyshire Council, judicial review proceedings will not be issued in relation to its decision to operate the Care Act ‘easements.’

Proceedings had been threatened on behalf of William Runswick-Cole by his mother, Katherine, after it transpired that the Council had made the decision to operate under the so-called ‘easements’ introduced by the Coronavirus Act 2020, which downgraded a wide range of Adult Social Care duties under the Care Act 2014.

The firm have today written to Derbyshire confirming that they remain of the view that the decision to operate under the easements, which it now transpires was in fact taken as long ago as 30 March 2020, was unlawful in the following ways:

1. The Council have been unable to provide any evidence to demonstrate why they formed the view that the situation had got so bad by the end of March that it was no longer reasonably practicable for it to comply with its Care Act duties and where to continue to try to do so was likely to result in urgent or acute needs not being met, potentially risking life. This is the threshold for operating under the easements set out in the relevant Guidance from the Secretary of State. There is nothing to show that the Council decided that this threshold was met.
2. The decision was plainly not taken in accordance with the procedure as set out in the relevant Guidance.  The Guidance recognises that operating under the easements is so serious that the decision should not be made without consultation with local NHS Leadership, agreed by the Director of Adult Social Services in conjunction with or on the recommendation of the Principal Social Worker and informing the local Health and Wellbeing Board. Perhaps most surprisingly, even the obligation to report the decision to the Department of Health and Social Care, explaining why the decision had been taken and providing any relevant detail, was not discharged until over 3 weeks after the decision was taken.
3. The Guidance imposed important obligations on the Council to communicate its decision; “This  decision should be communicated to all providers, service users and carers. The accessibility of  communication to service users and carers should be considered.” This is vitally important if    local people are to understand the decisions that are being taken about them. The Council’s    position, that this obligation was lawfully met by producing a 210 page cabinet report with this  decision buried within it, over 3 weeks after the decision was taken, is described by Alex Rook,  the partner at Rook Irwin Sweeney who represented Mr Runswick-Cole, as “absurd”.

The Council has however accepted that they have

“learned lessons from having to react swiftly to a situation never encountered before and will certainly respond differently in the future, should the need arise, in a number of respects, but certainly in relation to publicity and communication”

And that

“a number of lessons have been learned that will inform the Council’s future best practice if any future decision has to be made in relation to the easements, and that includes in relation to communicating decisions to all service users and providers”

The Council is also now taking steps to rectify the situation with regards to communicating its decision to local people, including the following:

• The Council’s website now includes an updated and expanded explanation of the changes.
• An easy read version of the changes is also now available on the website
  • This easy read version will also be circulated next week to the ‘Reps on Board’ (a group of individuals with a learning disability who contribute to stakeholder engagement when necessary) and the ‘Care Reps on Board’ (an equivalent group of carers of individuals with a learning disability).
  • A summary of the changes, and a link to the webpage, will be included within the next Derbyshire Community Newsletter email, due to be circulated next week. There are 1,739 subscribers to the newsletter, including local voluntary groups, community groups, societies, clubs, parish and town councils.
  • Notices will be published in local newspapers next week. These are delivered to households across Derbyshire; and
  • Think Local Act Personal (‘TLAP’) have been made aware via an online meeting with the Council’s Executive Director.

The case was funded via Rook Irwin Sweeney’s innovative ‘Education, Health and Care (EHC) Social Justice Fund,’ which exists to fund education, health and/or social care legal advice for disabled individuals or families who need assistance to get the support that they require that they are otherwise unable to access.

Alex Rook added:

“Our client has no desire to bring litigation where it is unnecessary to do so, and appreciates the concessions that the Council has now made, both to ensure that the current decision is now properly communicated, and that there is no realistic prospect that any of the easements will result in a reduction in his care.”

Professor Katherine Runswick-Cole added

“I am glad that Derbyshire have effectively acknowledged that they initially failed to consult or inform disabled people and their families about changes that affect their lives and are now taking steps to rectify this.  It is disappointing that decisions were made without consulting or informing disabled people and their families. As lockdown eases, I hope that Derbyshire will work closely with disabled people, their families and other allies to seek their views and to keep them informed. We are grateful to the Rook Irwin Sweeney Education, Health and Care Social Justice Fund for granting our family a bursary to support this challenge.”

Steve Broach, barrister at 39 Essex Chambers, also acted for Mr Runswick-Cole, instructed by Alex Rook.

Further information on Rook Irwin Sweeney’s EHC Social Justice Fund can find further details here: https://rookirwinsweeney.co.uk/social-justice-fund/

ENDS

For further information please contact Alex Rook on 0207 936 9886 or alex.rook@rislaw.co.uk