Capacity and EHC Plans

Matthew Wyard considers an important ruling for local authority education departments on how the Children and Families Act 2014 regime for over 18s and the Mental Capacity Act 2005 regime intertwine. Read more
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  NEWS

Nov 27, 2020

Ombudsman finds county council failed to meet needs of man with dementia, leaving him to pay for some of his own care

Hampshire County Council has been criticised by the Local Government and Social Care Ombudsman after it failed to meet an elderly man’s needs when his finances ran short.
Nov 26, 2020

Ombudsman criticises council after telling family of woman with dementia to change care home when her money ran out

Brighton and Hove City Council told a woman's family she would have to move to a cheaper care home when her money ran out, without assessing whether moving would harm her, the Local Government and Social Care Ombudsman has found.
Nov 20, 2020

Regulator of health and care professions to procure £5.9m legal services panel

The Health and Care Professions Council has given notice of its intention to procure a three-lot legal services panel worth an estimated £5.9m.
Nov 03, 2020

Tributes paid following death of leading social care QC

Barristers’ chambers and law firms have paid tribute to Stephen Knafler QC, a leading social care and immigration specialist who died on Saturday (31 October) after a short illness.
Nov 02, 2020

Judicial review regime “fit for purpose” says LLG in submission to independent review

LLG broadly considers the current judicial review regime as fit for purpose, the membership group has said in its response to a call for evidence from the Independent Review of Administrative Law (IRAL).
Oct 29, 2020

Court of Appeal identifies lessons on out of hours applications after disabled man sees human rights breached

The Court of Appeal has set out seven lessons for judges and practitioners in cases where urgent applications without notice are made, after concluding that a disabled man had his human rights breached.
Oct 26, 2020

Damning CQC report calls for improved community-based capacity, pooled budgets and new national specialist commissioner of complex care

A Care Quality Commission review has found “undignified and inhumane” care in some hospital settings providing complex care for autistic people, and people with a learning disability and/or mental health condition.
Oct 22, 2020

Ombudsman criticises council for leaving visually impaired man without support to access the community

A visually impaired man did not have the help he needed for 14 months after Westminster City Council reduced his support package, the Local Government and Social Care Ombudsman has said.
Oct 21, 2020

Ombudsman report finds council wrongly accused woman of using abusive language, stopped Care Act assessment

The Royal Borough of Greenwich has been told by the Local Government and Social Care Ombudsman that it need not compensate a woman it wrongly accused of using abusive language to a staff member.
Oct 13, 2020

Care watchdog to review use of DNACPR during pandemic

The Care Quality Commission is to review how Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) decisions were used during the coronavirus pandemic.

  FEATURES AND ANALYSIS

December 04, 2020

Reporting upon capacity for the court (and more broadly) – what (not) to do

A recent Court of Protection decision serves as an important reminder of how demanding the process of assessing and reporting upon capacity is – or should be, writes Alex Ruck Keene.
November 24, 2020

November 2020 Mental Capacity Report walkthrough

Alex Ruck-Keene provides an overview of 39 Essex Chamber's November update on mental capacity issues in the courts this month.
November 13, 2020

The inherent jurisdiction, deprivation of liberty and out of hours applications

The Court of Appeal recently set out seven lessons for judges and practitioners in cases where urgent applications without notice are made, after concluding that a disabled man had his human rights breached. Alex Ruck Keene analyses the ruling.
November 11, 2020

Section 21A applications and interim declarations: The implications of DP v Hillingdon

Join the Kings Chambers team of specialist Court of Protection barristers to discuss DP v Hillingdon, a recent case which is already altering the way that s.21A Mental Capacity Act applications are conducted.
November 09, 2020

Care and support for disabled and elderly people during ‘Lockdown 2’ in England - key legal considerations

Steve Broach and Sian Davies consider the implications of the second lockdown for people in need of care and support and the families and professionals involved in their lives.
November 06, 2020

DHSC care home visiting guidance

The Department for Health and Social Care has published its eagerly awaited care home visiting guidance for England. Alex Ruck Keene sets out the key points.
October 30, 2020

DP v London Borough of Hillingdon: Interim Declarations and the impact on Standard Authorisations and s21A Proceedings

Kathryn Kember looks at the important implications a recent Court of Protection case may have for both legal and social care professionals who are regularly involved in s21A proceedings.
October 22, 2020

Winter Plan: Impact on the deprivation of liberty safeguards

In the third in a series of articles by barristers at 39 Essex Chambers on the Winter Plan, Neil Allen considers whether the government's guidance on self-isolation constitutes a deprivation of liberty for those with reduced capacity.

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  MORE NEWS

Nov 27, 2020

Ombudsman finds county council failed to meet needs of man with dementia, leaving him to pay for some of his own care

Hampshire County Council has been criticised by the Local Government and Social Care Ombudsman after it failed to meet an elderly man’s needs when his finances ran short.
Nov 26, 2020

Ombudsman criticises council after telling family of woman with dementia to change care home when her money ran out

Brighton and Hove City Council told a woman's family she would have to move to a cheaper care home when her money ran out, without assessing whether moving would harm her, the Local Government and Social Care Ombudsman has found.
Nov 20, 2020

Regulator of health and care professions to procure £5.9m legal services panel

The Health and Care Professions Council has given notice of its intention to procure a three-lot legal services panel worth an estimated £5.9m.
Nov 03, 2020

Tributes paid following death of leading social care QC

Barristers’ chambers and law firms have paid tribute to Stephen Knafler QC, a leading social care and immigration specialist who died on Saturday (31 October) after a short illness.
Nov 02, 2020

Judicial review regime “fit for purpose” says LLG in submission to independent review

LLG broadly considers the current judicial review regime as fit for purpose, the membership group has said in its response to a call for evidence from the Independent Review of Administrative Law (IRAL).
Oct 29, 2020

Court of Appeal identifies lessons on out of hours applications after disabled man sees human rights breached

The Court of Appeal has set out seven lessons for judges and practitioners in cases where urgent applications without notice are made, after concluding that a disabled man had his human rights breached.
Oct 26, 2020

Damning CQC report calls for improved community-based capacity, pooled budgets and new national specialist commissioner of complex care

A Care Quality Commission review has found “undignified and inhumane” care in some hospital settings providing complex care for autistic people, and people with a learning disability and/or mental health condition.
Oct 22, 2020

Ombudsman criticises council for leaving visually impaired man without support to access the community

A visually impaired man did not have the help he needed for 14 months after Westminster City Council reduced his support package, the Local Government and Social Care Ombudsman has said.
Oct 21, 2020

Ombudsman report finds council wrongly accused woman of using abusive language, stopped Care Act assessment

The Royal Borough of Greenwich has been told by the Local Government and Social Care Ombudsman that it need not compensate a woman it wrongly accused of using abusive language to a staff member.
Oct 13, 2020

Care watchdog to review use of DNACPR during pandemic

The Care Quality Commission is to review how Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) decisions were used during the coronavirus pandemic.
Oct 07, 2020

Bevan Brittan recruits two partners to its Independent Health & Social Care practice

Bevan Brittan has boosted its Independent Health & Social Care practice with the hire of Sarah Skuse and Siwan Griffiths as partners in the London office.
Oct 06, 2020

Council hit with costs order after Court of Protection judge finds it failed autistic 18 year old

A Court of Protection judge has ordered Shropshire Council to pay the costs of the Official Solicitor and a father after finding that the local authority had failed an 18 year old man (ND) with a diagnosis of autism spectrum disorder.
Oct 05, 2020

Woman jailed after forging court order in bid to obtain medical records of relative subject to Court of Protection proceedings

A woman has been sentenced to an immediate term of imprisonment of 12 months after a High Court judge found she had forged a purported court order and sent it to an NHS trust with the intention of obtaining the medical confidential records of a relative, despite the court refusing to direct this.
Sep 24, 2020

Ombudsman raps council which failed to help care users maintain their homes

Hertfordshire County Council has been asked by the Local Government and Social Care Ombudsman to review its social care practices to ensure it meets its Care Act duties to help people keep their home tidy.
Sep 16, 2020

Union calls on care workers who make multiple visits to claim payments for travelling time

Trade union Unison has urged care workers and others to enter litigation over payments for time spent travelling between work appointments, following an Employment Tribunal ruling.
Sep 16, 2020

Ombudsman calls for mandatory signposting of complaints system for all social care providers

The Local Government and Social Care Ombudsman has called on the Government to use planned social care reforms to require adult social care providers to tell people, if they are unhappy with the services they are receiving, how to complain not only to the providers themselves, but also how to escalate that complaint to the Ombudsman.
Sep 15, 2020

Health and care workers report lack of legal training on how to uphold human rights law during COVID-19: BIHR

More than three quarters (76%) of people working in health and care who responded to a call for evidence told the British Institute of Human Rights (BIHR) that during COVID-19 they were not provided with legal training or clear information about upholding human rights law.
Sep 10, 2020

Continuous supervision and control

Alex Ruck Keene analyses a further judicial take on deprivation of liberty.
Sep 03, 2020

Ombudsman slams council over treatment of elderly couple who were split up after 59 years

An elderly couple of 59 years were split up with little regard for their welfare by the Royal Borough of Windsor & Maidenhead, the Local Government and Social Care Ombudsman has found.
Sep 02, 2020

Legal charity receives over £420,000 to expand legal advice clinics in Wales

Legal charity LawWorks has announced it will expand its services in Wales having received a grant of £422,760 from the National Lottery Community Fund.
Jul 29, 2020

Council loses High Court battle over level of support for disabled young woman

The London Borough of Southwark has lost a High Court case over a disabled young woman’s care plan after a judge found aspects of the council’s case to be materially flawed or erroneous.
Jul 22, 2020

Watchdogs in Wales to consider using their powers to scrutinise decisions and actions taken by public bodies in relation to older people during pandemic

The Older People’s Commissioner for Wales and the Equality and Human Rights Commission in Wales are to consider whether the Welsh Government and public bodies in Wales have met their responsibilities to uphold the human rights of older people during COVID-19.
Jul 16, 2020

Implementation of Liberty Protection Safeguards delayed until April 2022

Implementation of the Liberty Protection Safeguards (LPS), the scheme designed to replace the Deprivation of Liberty Safeguards (DoLS), has been put back until April 2022, the Government has confirmed.
Jul 14, 2020

Claimant with Down Syndrome secures permission for judicial review of charging policy of county council

A 24-year-old woman with Down Syndrome has been granted permission for a judicial review challenge of Norfolk County Council’s policy of charging people for essential care and support.
Jul 09, 2020

Courts have no jurisdiction over "unwise" decisions where subject has capacity

The Mental Capacity Act 2005 does not permit the courts to intervene to prevent someone from making decisions that are unwise or damaging to them if they have the necessary capacity, the High Court has ruled.

  MORE FEATURES

October 22, 2020

Coronavirus (COVID-19) - Social Care Tracker

This LexisNexis tracker is intended to be used to track key developments, legislation, guidance, parliamentary briefing notes and other sources of interest relating to COVID-19, where relevant to social care lawyers.
October 15, 2020

Discharging obligations to P and the court

Alex Ruck Keene reports on a salutary tale where a local authority was found to have failed an 18-year-old man with autism.
October 15, 2020

The Winter Plan and the right to family life

In the second of a three-part series from 39 Essex Chambers on the Government’s Adult Social Care: COVID-19 Winter Plan 2020-2021, Steve Broach looks at the implications for the right to respect for private and family life.
October 08, 2020

Enforcement of self-isolation

Alex Ruck Keene looks at another minefield to navigate in the capacity context - how new requirements on self-isolation apply to those with impaired decision-making capacity.
October 08, 2020

Department for Health and Social Care Winter Guidance: issues for local authorities

Siân Davies provides an overview of the Department of Health and Social Care (non-statutory) guidance issued on 18 September 2020.
October 01, 2020

The Court of Protection, s.48 and interim orders

Lee Parkhill analyses an important Court of Protection ruling on s. 48 of the Mental Capacity Act and interim orders.
September 04, 2020

Guide to Care Act 2014 repeals

The following LexisNexis Private Client guidance note provides comprehensive and up to date legal information covering repealed legislation (in whole or in part), secondary legislation revoked (in whole or in part), relevant new secondary legislation and statutory guidance and directions cancelled.
August 20, 2020

Liberty Protection Safeguards: DOLS and Re X still here until April 2022

Kerry Short looks at the implications for local authorities of the Government’s recent announcement of a delay to the implementation of the Liberty Protection Safeguards.
August 07, 2020

Social Care: healthcare, contractual disputes need assessments and data protection

Leon Glenister, Admas Habteslasie, Stephen Knafler QC and Ben Fullbrook cover a range of adult social care issues, including the relationship between health and social care services, need assessments, contractual disputes and data protection.
August 06, 2020

Consideration of private evidence and carer’s needs under the Care Act 2014

A recent judgment highlights the importance for local authorities to carefully consider privately-obtained evidence in Care Act 2014 needs assessments and how a carer’s needs interact with those of a person needing care, writes Arianna Kelly.
July 30, 2020

Alcohol and capacity

A recent case heard by the Vice President of the Court of Protection, Hayden J, raises three important points about the interpretation and application of sections 2 and 3 of the Mental Capacity Act 2005 (‘MCA’) in the context of alcohol addiction, writes Tony Harrop-Griffths.
July 30, 2020

COVID-19, care settings and deprivations of liberty

Rebecca Gowling analyses whether Care Quality Commission data suggests a rise in unauthorised deprivations of liberty.
July 30, 2020

The Mental Health Act, s117 after-care and ordinary residence

The Court of Protection team at 39 Essex Chambers explain the background to the government's change of approach to ordinary residence for s.117 after-care.
July 23, 2020

Discharge of deputies appointed by the Court of Protection

Lee Parkhill sets out the lessons to be learned after a council applied to the Court of Protection to be discharged as a property and affairs deputy in seven cases.
June 26, 2020

COVID-19 & RIDDOR for care providers

Edward Sainsbury and Peter James consider when and when not to report in relation to COVID-19 and RIDDOR.
June 19, 2020

Requests for care pending assessment

A recent judgment is extremely significant for local authorities considering requests to provide care pending assessments or reassessments of needs, writes Arianna Kelly.
June 12, 2020

Capacity and silos (again)

The Court of Protection team at 39 Essex Chambers consider a recent case that shows the difficulty in reconciling the decision and time-specific structure the MCA requires when assessing capacity with the approach outlined by the Court of Appeal.
June 11, 2020

The Court of Appeal, decision-making capacity and sex

An important ruling from the Court of Appeal raises the question: have we been getting it all wrong? Alex Ruck Keene analyses the judgment.
May 15, 2020

An introduction to the Court of Protection

Alex Ruck Keene explains the fundamentals of the Court of Protection, covering its distinctive features, function and when it should be involved in a dispute.
May 14, 2020

Deprivation of Liberty - getting it right

Alex Ruck Keene considers the fundamentals of deprivation of liberty and "how to get deprivation of liberty right".