High Court dismisses legal challenge over government failure to implement Care Act system for appeals against care and support decisions

A High Court judge has rejected a judicial review challenge to the Secretary of State for Health and Social Care’s decision not to make regulations for appeals against local authority decisions under Part 1 of the Care Act 2014.

Mr Justice Julian Knowles heard an application for judicial review brought by HL, who said the Secretary of State should have made regulations pursuant to s72 of the Act to make provision for appeals by individuals.

He said local authorities were under a duty to meet the care needs of eligible individuals who - typically because of mental or physical disabilities - require such support. They also had a general duty to promote that individual’s well-being.

Local authorities must carry out a needs assessment of an adult who it appears may need care and support and determine whether they meet the specified eligibility criteria.

Where disputes arise individuals can complain via a local authority internal complaints procedure and on limited grounds to the Local Government and Social Care Ombudsman. They may also seek judicial review, or bring a claim under the Human Rights Act 1998, the judge noted.

He said: “The claimant relies on evidence which she says shows these are not effective dispute resolution mechanisms because, in simple terms, none of them is capable of reaching a decision on the merits of any dispute with the local authority.

“The nub of the claimant’s complaint is that the defendant decided in 2016 to implement an appeals system under s 72, but then on 1 December 2021 in a White Paper performed what she regards as a volte-face and decided not to implement the appeals system either alongside or irrespective of cost capping reforms and instead, re-opened the question of whether an appeals system was required at all.”

HL’s first two grounds of challenge were that the Secretary of State breached his common law duty to consult prior to his decision in December 2021 to shelve the independent appeals system and that failing to implement an appeals system posed a risk of individuals being without an effective legal remedy to resolve social care disputes.

The third ground was that the failure amounted to an interference with the procedural guarantees to an effective remedy to which the claimant is entitled under Article 8 of the European Convention on Human Rights.

HL lives in a county council area in southern England and is severely disabled with several complex long-term medical conditions, describing herself “as being constantly in pain and exhausted”.

She is also the sole carer for her 11-year-old son, who is autistic, has attention deficit and hyperactivity disorder and pathological demand avoidance, and exhibits very challenging and violent behaviour:

HL has since June 2016 had a package of adult social care from the council initially for 21 hours per week but halved in April 2019 to 10.5 hours per week, which she said meant she has struggled to take her medication, shower, wash her clothes, clean her house and manage her son’s complex behaviour.

This led to lengthy disputes with the council to try to restore the care package.

The Secretary of State said choices had had to be made as to which areas could make the biggest difference immediately within the available funding; and “this was a quintessential political decision”.

He said he had no duty to carry out a full public consultation prior to the December 2021 White Paper as there had already been two consultations that included questions on an appeals mechanism.

There was no conspicuous unfairness in not consulting, and while HL noted the Government had previously planned to implement an appeal process, “this was a policy position rather than a legal entitlement”, the Secretary of State said.

He further submitted that this ground was now academic, because a consultation on dispute resolution occurred in 2022 and will inform future decisions.

Julian Knowles J said the first ground failed as “in the case of a democratically-elected public authority, such as the defendant, the courts will be particularly cautious about inferring that a duty to consult has arisen”.

He said it was relevant that the Secretary of State’s position was not an absolute ‘no’ to making appeal regulations but that work is ongoing and an appeals system may be introduced.

The Secretary of State had not caused actionable unfairness because he never made an unequivocal promise to always consult on an appeals system, and the Government was entitled to carry out the pre-White Paper consultation in the way it did and this was “lawful…even though it fell short of a full public consultation”.

He dismissed the second ground as it was clear Parliament did not consider the appeals issue “so pressing to require the Secretary of State to implement such a system – as it surely would have done had there been real constitutional access to justice issues”.

HL was “not without remedies” and Julian Knowles J said: “Next, and fundamentally, I do not find it easy to see that the Secretary of State has taken any action which has any direct or indirect effect on an individual’s ability to access a court or tribunal.” He for the same reason rejected the Article 8 ground.

Mark Smulian