Safeguarding case conference unfair

Safeguarding vulnerable people is a vital function of relevant local authorities. However, excessive zeal resulting in unfairness is unlawful. And any such decision is liable to be quashed on judicial review.

Such was the outcome for West Sussex County Council where decisions of a ‘safeguarding vulnerable adults case conference’ (which, amongst other things, substantiated allegations of abuse made against various members of staff at a residential care home and recommended referring three such members of staff to regulatory bodies "for possible disciplinary action") were found to have been reached unfairly. The case in question (judgment in which was given on 22 August 2012 by His Honour Judge Mackie QC) was Davis and Davis v West Sussex County Council [2012] EWHC 2152.

The claimant care home owners challenged the council’s processes leading to the above case conference decisions on the following grounds:

1. They were not given adequate notice of the allegations against them to afford a fair opportunity of presenting their case at the case conference. They were provided with a copy of the very substantial investigation report which set out the allegations for the first time (albeit unclearly) only one working day before the conference;
2. They were not shown the evidence against them;
3. The case conference was not shown relevant evidence generated by the investigation, both for and against them;
4. The claimants were not permitted, or given an adequate opportunity, to produce relevant evidence to the case conference, whether through witnesses or otherwise.

No resident had supported the allegations and some relatives in fact strongly supported the claimants. The police had investigated the allegations but took no action. Complaints by the council to the professional bodies of some of the staff concerned were not upheld. And the Care Quality Commission, having investigated the home following the allegations, had withdrawn its initial suspension and found that all key essential standards had been met.

Legal functions

A variety of legal functions underpin the safeguarding responsibilities of relevant local authorities. These include: section 47(1) of the National Health Service and Community Care Act 1990 (duty to carry out assessment of those who may be in need of community care services); section 21(1) of the National Assistance Act 1948 (power - and duty following ministerial direction - of authorities to arrange residential accommodation for adults ‘who by reason of age, illness, disability or any other circumstances are in need of care and attention’ not otherwise available) and power to commission such accommodation from the private sector under section 26 of the 1948 Act.

In addition, section 29(1) of the 1948 Act enables (and following ministerial direction requires) authorities to make arrangements for promoting the welfare of any adult who is blind, deaf or dumb or suffering from mental disorder of any description and other adults who are substantially and permanently handicapped by illness, injury, congenital deformity or other disabilities prescribed by order. And section 45(1) of the Health Services and Public Health Act 1968 enables an authority subject to ministerial approval and direction to make arrangements for promoting the welfare of old people. The Government has also issued guidance on safeguarding vulnerable adults under section 7(1) of the Local Authority Social Services Act 1970.

Legal issues

These can be considered under two broad headings, i.e. whether:

• there had been a breach of the public law duty to act fairly (including whether there had been a failure to fulfil a legitimate expectation);
• the complaints related not to default in the exercise of a public function but to alleged breaches of contract at private law.

Each will be mentioned in turn.

Public Law Fairness

The court noted the following principles (amongst others) from relevant authorities:

• The rules of natural justice are not set on tablets of stone. Where a body has statutory power to make decisions affecting individuals, in addition to the procedure prescribed by statute the courts will imply such necessary additional procedural safeguards as will ensure fairness (Lloyd v. McMahon [1987] AC 652, per Lord Bridge);
• "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them." (Per the Privy Council in Kanda v. Government of Malaya [1962] AC 322);
• "Of course the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called upon to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense." (R v. Thames Magistrates Court, ex parte Polemis [1974] 1 WLR 1371);
• "The right to be heard will include, in appropriate cases, the right to call evidence. It would in our judgment be wrong to attempt an exhaustive definition as to what are appropriate cases, but they must include proceedings whose function is to establish the guilt or innocence of a person charged with serious misconduct." (R v. Board of Visitors of Hull Prison, ex parte St Germain [1979] 1 WLR 1401).

As to legitimate expectation, the court referred to the leading case of Nadarajah v. Secretary of State for the Home Department [2005] EWCA Civ 1363 where Laws LJ at paragraph 68 held that: "Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public."

The judge noted the serious impact on the claimants of the case conference findings including financial loss of at least £150,000, resident disruption and referral of staff to professional bodies. In his view the circumstances of the conference itself and the consequences were unfair and unjust and the procedure adopted and carried out was unfair. Neither was there was in the circumstances any respect in which the duty to protect vulnerable adults conflicted with the less pressing obligation to treat other parties affected in a just manner.

Private law contract issue

The council contended that the complaints in issue did not relate to defaults in the exercise of a public function but to alleged breaches of a contract entered into in by the council in a private law capacity. This raised the thorny and oft-ventilated question of when a particular activity becomes a public function subject to public law as opposed to a private action governed by the private law of contract. In addressing this, the judge considered various relevant authorities including the decisions of the Court of Appeal in Supportways Community Services Limited v. Hampshire County Council [2006] EWCA Civ 1035 and in Weaver v. London Quadrant Housing Trust [2010] 1 WLR 363.

In Supportways, Mummery LJ said that in order to attract public law remedies there would at least need to be: ".... a relevant and sufficient nexus between the aspect of the contractual situation of which complaint is made and an alleged unlawful exercise of relevant public law powers." And in Weaver, Elias LJ outlined the following "tentative propositions":

1. The source of the power is relevant to whether the act is private or public;
2. However, that is not decisive since the nature of the activities in issue is also important;
3. The character of the act is likely to take its colour from the character of the function of which it forms part.

Elias LJ also rejected the notion that the exercise of a contractual power meant that an act was necessarily ‘private’.

In the circumstances the court took the view that the council "was rightly and primarily concerned with investigating allegations of abuse under its legal powers". The judge observed that the "contractual issues were ancillary" and there was "no direct challenge to the contract in this case". These, in his view, were "essentially public law claims". Consequently the cumulative factors "establish sufficient public flavour, as it was put in Weaver, to make the process of investigation and decision a public function distinct from the contractual relationship". The judge accepted that the council’s decisions (concerning very serious findings of abuse where the claimants had not been given a fair opportunity to put their case) were reached unfairly and "continue to cast a shadow over the claimants and their present and former members of staff".

Comment

This decision enhances the accumulating jurisprudence on the contextual distinction between a public and a private function. However, it also reminds authorities that, even when they are exercising vital safeguarding functions to protect vulnerable people, authorities must not abuse their publicly conferred power by acting unfairly. For this can have a (no doubt unintentionally) oppressive result and cause much personal misery and damage to those who (unlike authorities) have no access to public funds.

Dr Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law. He is also Communications Officer for the Association of Council Secretaries and Solicitors.

© Nicholas Dobson