Sophie Wenzinger Clerc reflects on the recent LAG conference.
On 22 October 2024, I was lucky to attend the annual Legal Action Group (LAC) Community Care Conference hosted at 39 Essex Chambers. The Conference comprised several keynotes and breakout sessions led by key community care legal practitioners. It was attended by members of various legal advocacy and community care organisations – including Coram Children’s Legal Centre, Access Charity, or the Law Commission. The Conference aimed at discussing contemporary community care legal developments and challenges to arm legal practitioners with the tools necessary to support people with care needs. It also launched Making Lawful Decisions: A Guide for Decision-Makers on Acting within the Law by Tor Butler-Cole KC and Steve Broach KC.
Addressing the systemic discrimination faced by people with disabilities
The day opened with some words by Steve Broach KC, head of 39 Essex Chambers – who stressed the increasing difficulty of responding to care needs as funding gets tighter and people’s abilities to achieve their Human Rights are increasingly restricted.
In an inspiring presentation, disability rights activist Doug Paulley went on to introduce Reasonable Access, an organisation of disabled people and activist lawyers dedicated to addressing the daily problems and barriers faced by people with disabilities. Paulley stressed the continual disability experienced by people with care needs – whether society’s failure to support individuals with different needs or to make adjustments on a continual basis. In a mainstream culture of victimisation, disabled people are trained to feel like they are different and should be grateful for less than the minimum. They are blamed for their condition, their experience is denied, and access to adequate support often depends on a ‘postcode lottery’ (i.e. budget available to their local authority). To Paulley, this results in dangerous patterns of internalised oppressions, evidenced by the victimisation faced by disabled people who are often gaslighted when trying to relate their experience. The power imbalance is evidenced by the extremely small number of people with disabilities getting to act at the decision-making level to achieve political change. Drawing from the Equality Human Rights Commission (EHRC), Paulley explained that the severe lack of activist lawyers and legal aid funding results in deeply insufficient capacity for community care work, preventing many affected individuals from pursuing their rights.
Relevant community care legal developments: Section 20 of the Children Act 1989
The session followed with an update on key community care caselaw presented by Adam Boukraa of 39 Essex Chambers. Amongst others, Boukraa presented several Home Office cases relating to section 20 of the Children Act 1989 relating to the provision of accommodation for children and related assessments by local authorities. Boukraa stressed that the exact internal reliefs required to ensure that accommodation is granted to a minor remain very hard to pinpoint – causing serious livelihood issues for clients requiring emergency support. He concluded that the latter often depend on the social worker’s work and the local funding scheme, meaning that the support minors can get is not streamlined nationally.
Community care claims: Claiming damages vs defending a claim
The day continued with a joint session led by Katherine Barnes and Ollie Persey of 39 Essex Chambers and Zoe Leventhal KC of Matrix Chambers. The session explored the remedies available under the Human Rights Act (HRA) 1998 and the Equality Act (EA) 2010, before presenting judicial review claims implications for defendants. Barnes explained the various implications of HRA 1998 articles depending on private life, family, and housing claims. She stressed that courts rely on fairness tests which fail to respond to the inherent nature of care needs, where assuming that people start from similar positions reflects a deeply rooted institutional flaw. Barnes also explained that since McDonald v UK [2014] ECHR 492, failure to provide care and support (e.g. closing a care home) is not considered a positive obligation but a negative interference by courts. Negative interferences require public authorities to show that the interference is in accordance with the law and proportionate. However, practice reveals that judges exercise high levels of discretion in such cases and breaches of Article 8 of the HRA 1998 are generally difficult to establish where requirements of the Care Act 2014 are met.
Barnes then provided an overview of positive obligation cases and stressed that the EA 2010 remains underused in judicial review claims, although it constitutes a useful instrument for community care cases. She concluded that the HRA 1998 remains useful in cases involving private providers, whilst the EA 2010 provides for a duty to make reasonable adjustments which defendants may find difficult to bypass.
Ollie Persey went on to present practical steps for practitioners to bring community care claims, discussing the elements required for the cause of action under section 15 of the EA 2010; the factors to consider for evidencing the claimant’s ‘injury to feelings’; the relief available (R (on the application of Imam) v London Borough of Croydon [2023] UKSC 45); and the importance of the public body’s procedural duty.
Zoe Leventhal KC concluded the session with an introduction to judicial review claims defence. She stressed that defendants have a duty of candour which requires them to meet all lawful requirements and provide transparent answers to service users, and in turn saves time and resources. Defendants must ensure that they provide quality evidence to justify that the severity of a policy is outweighed by its objective (R (On the Application Of) v Birmingham City Council [2024] EWHC 701 (Admin)). Leventhal suggested for practitioners to produce and rely on good practice guidelines at all times, to ensure the issues engaged with are explained precisely to the court.
Building a Community of Practice to strengthen community care capacities
Following the lunch break, Carol Storer of Access Social Care delivered a thought-provoking presentation addressing the barriers faced by community care practitioners. Storer pointed out that community care appeals to many lawyers and law students. However, she stressed that legal aid contracts are unappealing and insufficient, whilst inquiries from people seeking assistance increase dramatically. Unfortunately, Storer explained, community care constitutes a small share of the work carried out by the Legal Aid Agency, thus suffering more neglect than any other sector. Hence, Storer called for all community care practitioners to join Access Social Care’s Community of Practice, including students who are interested in learning about community care and contribute their enthusiasm to improving community care.
Access Social Care is a charity delivering free legal support and campaigning to highlight the gap left by legal aid so everyone can access the social care they have a right to. Their Community of Practice is currently being set up and relevant information will be shared soon. To find out more about Access Social Care programmes, please visit this page.
Conducting better disabled children’s needs assessments
The afternoon continued with a presentation of the Law Commission Review on Disabled Children’s Social Care by Connor Johnston of the Law Commission and Alex Ruck Keene KC of 39 Essex Chambers. The document provides an independent review of social care points relating to disabled children specifically and related legislation and was inspired by the tendency of practitioners to focus on safeguarding children and conducting investigations – at the expense of actually supporting them.
Johnston and Ruck Keene praised the ground-breaking changes brought by the Children Act 1989, but emphasised the complex reality faced by practitioners when children’s rights assessments due to the patchwork of legislation. Amongst other things, they stressed that the requirements are unclear as to when statutory and non-statutory should be made by local authorities – whilst there is no actual overlap between the two in fact. Johnston and Ruck Keene explained that only 100,000 disabled children out of 1.3 million are subject to child in need assessment every year, when assessment should in fact be streamlined and systematised. Although this may trigger more litigation, it would ensure that all children can be assessed and that their needs are identified. Drawing from the case of R v Gloucestershire, ex parte Barry [1997] AC 584, they stressed that local authorities are entitled to consider their own financial capacity to provide assistance to children with disabilities. However, this sustains a national system where the lack of standardisation exposes children in need to a ‘postcode lottery’. They concluded by discussing the institutional flaws in grouping all kinds of ‘disabilities’ and ‘social care’ into one definition and called for a redefinition of eligibility criteria based on needs rather than diagnoses.
A summary of the Review is available here.
Conclusion
The day went on with two sets of two breakout sessions, discussing the following topics:
• ‘Continuing care – Transition from children to adulthood’ delivered by Stephen Cragg KC of Doughty Street Chambers and Rebecca Chapman of Irwin Mitchell.
• ‘Community care for an ageing population’ delivered by Bethan Harris of Garden Court Chambers, Ken Bluestone of Age International, and Zena Bolwig of Keystone Law.
• ‘Navigating the interplay between the Care Act 2014 and the Housing Act 1996 and the Children Act 1989 and the Housing Act 1996’ delivered by Alice Irving of Doughty Street Chambers and Liz Davies KC and Matthew Ahluwalia of Garden Court Chambers.
• ‘Getting more Investigative Representation’ delivered by Karen Ashton of Access Social Care and the Central England Law Centre.
Finally, Steve Broach KC and Victoria Butler-Cole of 39 Essex Chambers presented their latest book Making Lawful Decisions: A Guide for Decision-Makers on Acting within the Law (2024), published by LAG. The book provides public and private sectors decision-makers with practical guidance on lawful decision-making requirements – from the initial preparatory stages, through hearings, to any remedies where decisions are made unlawfully.
Overall, the day evidenced that by continuously limiting legal aid funding, the State fails healthcare, immigration, and community care legal practitioners supporting people with disabilities. The difficulty to find lawyers with the resources and capacity to challenge decisions affecting individuals with physical and mental distress prevents equal access to care and justice. The intersectional and internalised nature of such systemic oppressions sustains a vicious circle of isolation, further limiting access to legal institutions to people who need it most.
