The Care Act 2014 and appeal mechanisms

Must there be an appeal mechanism against local authority decisions under the Care Act 2014? Leon Glenister reports on a recent ruling.

The Care Act 2014

Part 1 of the Act provides for a duty on local authorities to meet the care needs of eligible individuals within their area who require such support. This includes duties to assess need and provide support.

If an adult disagrees with a decision relating to their social care, at present the legal recourse is judicial review. The individual may also be able to make a complaint to the local authority if that particular authority has a suitable mechanism, or make a complaint to the Ombudsman.

Section 72 of the Act provided the Secretary of State a power to make provision for appeals against decisions taken by a local authority in the exercise of functions under Part 1 of the Act. In early 2016, the Government had announced a decision to introduce an appeal system from April 2020. Following this, the Government’s policy changed. The appeal system was to be considered alongside the wider social care reform package.

In December 2021, the Government published the White Paper, setting out the prioritisation for social care reform. It followed an extensive engagement exercise with over 200 organisations. The White Paper set out that an appeal system was not to be brought in immediately, but that it would be kept under ongoing review as new reforms were implemented.

In evidence, the Government explained that having taken account of the engagement exercise, of which the appeal system was not a significant feature of reform priority, the Government prioritised early spending elsewhere. Indeed, the other reforms being implemented may impact the need, design and importance of the appeal system.

The Claimant had a history of social care disputes with her local authority but considered the mechanisms available to her were not effective. She challenged the Government’s decision not to implement immediately an appeal mechanism. She filed her own evidence on the significant difficulties she had in obtaining the requisite level of social care support. She also filed evidence from a range of individuals on broader difficulties they had experience of in resolving disputes on local authority social care decisions.

Did the Secretary of State act unlawfully in respect of consultation?

The Claimant argued that the Secretary of State was required to carry out a public consultation covering the appeal mechanism, prior to publication of the White Paper. She argued that there had been two public consultations, one prior to the Care Act 2014 being enacted and one after, on social care reform which included questions in relation to dispute resolution.

The Court found these two consultations did not establish a practice that was so consistent as to imply unambiguously a future practice of consultation, either on social care reform generally or on dispute resolution specifically. In addition, the Court considered the “broad” consultation with representative groups was relevant and the Government was entitled to consider its future reform that way, even though it was not a full public consultation.

The Court considered that the change of government policy did not mean the entire consultation process had to be repeated – and accepted the Secretary of State’s argument that, broadly, it is not the law that where a public body adopts an unimplemented policy position following consultation then there is a duty to re-consult fully should the situation change.

Was there a duty to implement an appeal mechanism by virtue of the common law right of access to justice or article 8 of the European Convention on Human Rights?

The Claimant argued the evidence filed demonstrated that her common law right of access to justice and her procedural article 8 ECHR right had been infringed.

As to the common law right, the Court considered that whilst was a constitutional right inherent in the rule of law, the case law concerned whether there was a risk of preventing any access at all to a Court or Tribunal (such as the Supreme Court in UNISON). The Judge did not consider this was demonstrated – this was because Parliament had legislated to give a power rather than duty to create an appeal system and it had not legislated in a vacuum, and there were other remedies available including judicial review and human rights claims. In addition, the evidence from the Secretary of State as to the engagement exercise did not demonstrate a problem so acute that it raises a constitutional access to justice issue.

As to article 8 ECHR, the Court accepted this includes a procedural right, but also noted the margin of appreciate to states. This ground was also rejected – it was highlighted service users can access the courts and ombudsman, solicitors are available, and there is no hindrance to court access in the manner of UNISON and other cases.

The current position

The White Paper set out:

“The Care Act 2014 includes a provision to introduce a new system to allow the public to appeal certain social care decisions made by local authorities. While we do not intend to introduce such a system immediately, we are keeping it under ongoing review as the new reforms are implemented and will continue to gather evidence to inform future thinking.”

Section 72 of the Act is not yet in force. The High Court has found this position in relation to social care reform lawful, although the Claimant has sought permission to appeal from the Court of Appeal in relation to the consultation and article 8 points.

Leon Glenister is a barrister at Landmark Barristers. Instructed by the Government Legal Department, he acted for the Secretary of State for Health and Social Care.