Does an agreement between a tenant and a local authority described as a licence, give a tenant a secure tenancy under s79 Housing Act 1985 and mean the premises is let as “a separate dwelling”?  If so, the licence amounts to a secure tenancy even though it is inconsistent with the parties intentions expressed at the time. See Mansfield District Council v Langridge in the free cases database.

There was no discretion for a housing review officer to give him or herself dispensation from complying with an obligation under regulation 8 (2) of the Allocation of Housing and Homelessness Regulations 1999.  Where a review decision was likely to be adverse to an applicant, a “minded to find” notice should always be served explaining the reasons for his/her provisional views.  See London Borough of Lambeth v Johnston in the free cases database.

The practice of relying on an expectant mother to put a hospital on notice of complications in previous pregnancies was flawed and amounted to negligence.  See Loraine v Wirral Teaching Hospital NHS Trust in the free cases database.

The right to respect private life and home in Article 8 ECHR did not impose a general obligation on those responsible for people detained under the Mental Health Act to make arrangements enabling them to smoke; there was no general right for mental patients to smoke or obligation to permit smoking.  See R (G) v Nottingham Healthcare NHS Trust in the free cases database.

Does a local authority owe a duty of care at common law to provide cot-sides within a reasonable period to a person for whom it provides community care?  See Sandford v London Borough of Waltham Forest in the free cases database.

"The criteria for self-defence in civil law should not be the same as that for criminal law since the end served by the two systems served very different ends".  See the House of Lords judgment in Ashley & Another v Chief Constable of Sussex in the free cases database.

The circumstances in which the making of a direct payment under the Social Care Act 2001 constituted income or earnings affecting a claimant's entitlement to income support was considered recently in Casewell v Secretary of State for the Department of Work & Pensions
 

A recent unreported case has put pressure on the NHS to explain precisely why it finds it so difficult to purchase care directly from people's relatives, when the patient is entitled to continuing NHS health care funding, and needs it, in their parents' or their own home.  See R (Patnaik) v Sunderland Primary Care Trust in the free cases database
 

Guidance advising NHS Trusts to charge failed asylum seekers (who would otherwise be treated as ordinarily resident) for its services was unlawful according to the High Court in A v West Middlesex NHS Trust.

The marriage of a man under Sharia law, resident in England but lacking the capacity to marry, was voidable rather than void and required an application for nullity in the English courts.  See KC & Anor v City of Westminster Social & Community Services Department in the free cases database.

Where an incapacitated male entered into a marriage in England or abroad it would be voidable and not recognised under English law.  This case also sets out the test for capacity to consent to sexual relations.  See Re MAB v X City Council in the free cases database.

See the What's New page for a new Topic on Safeguarding Adults and the Safeguarding Vulnerable Groups Act 2006.

A Council was liable in damages to its employee working in an EMI Home for a breach of Health and Safety (Workplace Regulations) 1992 by failing to remove a slipping hazard. See Ellis v Bristol City Council in the free cases database.

The Court of Appeal held that a Health Authority which made a without notice application to cancel the registration of a care home owner owed no duty of care to the proprietor at common law.  See Jain & Anor v Trent Strategic Health Authority in the free cases database.

Where a local authority seeks to limit contact between a vulnerable adult and her partner to reduce the risk of harm it must be careful not to breach the adult's Article 8 rights, particularly where the adult has capacity to have a sexual relationship.  See Re MM(an adult) in the free cases database.

Since Part 21 Civil Procedure Rules came into force in 2007 judges are required to adopt the new statutory definition of capacity from the Mental Capacity Act 2005 in deciding whether a person was a protected party or a protected beneficiary.  See Saulle (by his litigation friend GS ) v Nouvet in the free cases database.

The unnecessary use of handcuffs on a prisoner receiving treatment at a hospital is capable of breaching Article 3 either because it is inhuman or degrading or both.  See The Queen (on the application of G and A) v Secretary of State for Justice in the free cases database

The correct question for the court to ask itself when deciding whether or not to make an immediate possession order, is whether the order is reasonable in all of the circumstances.  See Accent Peerless Ltd v Kingsdon in the free cases database.

In an appeal by an incapaciatated tenant against a disallowed claim for housing benefit, a contract entered into was not void, but voidable.  It was for the incapacitated person, or their representative, to apply to have the contract avoided. Until they did so, or chose not to do so, the contract was valid. See the Social Security Commissioners Decision CH21021/2006 in the free cases database.

It did not matter that the indictable offence referred to in ground 14 Schedule 2 (s7 Housing Act 1988) did not occur during the currency of the tenancy.  A tenant convicted of possessing indecent images of children posed a continuing threat to the safety of his neighbours and an order for immediate possesion of his assured tenancy was held to be lawful.  See Raglan Housing Ltd v Fairclough in the free cases database.

The Secretary of State was successful in an appeal against a ruling by the High Court that s82(4)(b) Care Standards Act 2000 was incompatible with Articles 6 and 8 of the ECHR.  A decision to include a care worker on the list was an interim decision and might not prejudice the final decision.  Both Articles would be capable of applying in some but not all cases and a blanket declaration of incompatibility should not have been made.  See Wright & Others in the Court of Appeal in the free cases database. 

NICE is required, in carrying out its functions, to pay due regard to promoting equality of opportunity between disabled persons and other persons.  See Eisai Ltd v NICE in the free cases database. 

Guidance as to which is the responsible PCT for the purchase of various health service funded services has been published.  Follow the link   http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_078466  or go to NHS Finance on the Links page.

The Health and Social Care Bill was introduced into Parliament on 15th November 2007 and contains significant measures to modernise and integrate health and social care.  Follow the link or go to Health - general on the Links page.

It was reasonable in light of prevailing housing conditions to allow tenants to continue to occupy accommodation notwithstanding it  was overcrowded and in breach of s327 Housing Act 1985.  See Harouki v RB Kensington & Chelsea in the free cases database.

A local authority acted lawfully in refusing to accommodate asylum seekers who were suffering from a major depressive episode.  See R( Pajaziti) v Lewisham LBC in the free cases database.

A local authority, when deciding if an asylum seeker was eligible for assistance under s.21 National Assistance Act 1948, should not have treated the eligibility criteria formulated under its policy guidance as satisfying the requirements of the section, but should have asked whether the applicant's need for care and attention went beyond a lack of funds and accommodation.  See R(N) v London Borough of Lambeth in the free cases database.

Failure to obtain leave from the High Court to bring civil proceedings against the police for misuse of its powers under the Mental Health Act 1983, as required by s139(2), rendered the proceedings null.  See Seal v Chief Constable South Wales in the free cases database.

It is not necessary for a medical practitioner to be certain that psychotic symptoms will result before a patient is recalled under s72 of the Mental Health Act 1983.  See R(MM) v Secretary of State for the Home Department  in the free cases database

It was maladministration by a council which failed to bring a house up to an acceptable standard before letting it to a tenant.  See Ombudsman's Report - Nottingham City Council in the free cases database.

A council could not be held liable for any financial losses suffered due to the purchase of an inappropriate financial care plan to cover nursing home fees. See Ombudsman's Report - Wiltshire County Council in the free cases database.

Where a local authority took a major role in making arrangements for a child to be fostered, it was likely that in doing so it was exercising is powers and duties as a public authority.  The nature of any private arrangements should be made explicit by the local authority to those involved. See London Borough of Southwark v D in the free cases database.

A local authority should carefully consider any additional information provided by an applicant's medical advisors in support of her 'priority need' application for housing, particularly in relation to its own medical advice, before making a final decision on the case.  See Shala v Birmingham City Council in the free cases database.

A local authority's housing allocation policy was unlawful for those found to be homeless at home and owed a duty under the Housing Act 1996.  See R(Aweys) v Birmingham City Council in the free cases database.

It now seems settled that a care home, in providing care and accommodation to a resident placed by a local authority under sections 21 and 26 of the National Assistance Act 1948 is not “performing functions of a public nature” for the purposes of section 6(3)(b) of the Human Rights Act 1998.  See YL(by her litigation friend the Official Solicitor) v Birmingham City Council in the free cases database.

There was nothing to stop a medical member of mental health review tribunal discussing all aspects of the case with other members of the tribunal before the hearing and to express a preliminary view on any aspect of the case.  See R(RD) v MHRT in the free cases database.

An interim order for the displacement of a nearest relative under the Mental Health Act 1983 could be made without notice so long as the general rules about making such applications are complied with and there is no irreversible prejudice to the patient.  See R(Holloway) v Oxford County Council in the free cases database.

Patients who are conditionally discharged under the Mental Health Act 1983 have an absolute right to choose whether to consent to medication prescribed for them provided they have capacity to communicate an informed choice.  See R(SH) v MHRT in the free cases database.

The loss of liberty resulting from the tort of misfeasance in a public office constituted the requisite type of damage sufficient to entitle a prisoner to recover general damages.  See Karagozlu v Commissioner of the Metropolis in the free cases database.

It was an affront to "fundamental humanitarian principles" to return an asylum seeker with mental health problems to his country of origin where there were insufficient facilities to provide him with the appropriate treatment and medication for his illness.  See K v Secretary of State for the Home Department in the free cases database.

A local authority was not precluded from making direct payments to the parent of a disabled girl in connection with her social and practical care at boarding school.  See The Queen (on the application of M) v Suffolk County Council in the free cases database.

A local authority had no legitimate expectation that a grant provided by the DfES in respect of support for unaccompanied asylum seeker children would remain the same year on year and in accordance with the previous funding formula.  See London Borough of Hillingdon v DfES in the free cases database.

A school was justified in treating a severely disabled child less favourably and putting him at a disadvantage.  See K v the School & Special Educational Needs & Disability Tribunal in the free cases database.

In a case which raises doubts about the effectiveness of the Bournewood Reforms, the court assumed jurisdiction over an incapacitated woman by granting orders to protect and prevent her removal from a care home.  See Sunderland City Council v PS (by her litigation friend the Official Solicitor) & PA in the free cases database.

The Joint Committee on Human Rights has recently published a report on the meaning of a public authority under the Human Rights Act.  Follow the link http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/77/7702.htm

A person with brain injuries suffered as a result of a road traffic collision who did not have the capacity to manage potential settlements offered by the defendants or weigh up the advantages and risks of conflicting financial advice, was a patient within the meaning of Part 7 Mental Health Act 1983 and CPR Part 21.  See Lindsay v Wood in the free cases database.

Where a judge had found that a child had not been sexually abused by one parent, it logically followed that he could not hold that the other parent had failed to protect the child against sexual abuse and his conclusion that the child had suffered significant harm under the Children Act 1989 s.31 on the basis of that failure to protect could not stand.  See W (a Child) in the free cases database.

A local authority had not failed to address essential questions from the FACS guidance in carrying out a care assessment, nor was its procedure unfair by failing to allow a service user to see the preliminary views of the author of the assessment.  See the Court of Appeal decision in Lambeth LBC v Ireneschild in the free cases database.

A primary care trust had failed to properly consult the relevant persons under s11(1) Health & Social Care Act 2001 when it carried out a tender process for GP services.  See Smith v North East Derbyshire PCT in the free cases database.

In a claim for compensation under the Criminal Injuries Compensation Scheme 1990, it was for the defendant to prove that the apparent cost of the claimant's reasonable requirements should be reduced because of the possibility that local authority provision would meet some or all of them.  See The Queen (B by his litigation friend PW) v CICAP in the free cases database.

In the light of overwhelming new psychiatric evidence that the appellant's mental condition had been treatable at the time of his sentence, it was appropriate to replace his sentence of life imprisonment with a hospital order and a restriction order.  See Beatty v The Queen in the free cases database.

A local authority was not required or authorised to provide accommodation for a disabled mother and her sons based on s21 NAA where an alternative provision was available, nor did it have a enforceable duty under the s17 Children's Act 1989 to provide accommodation for individual children, but rather an overarching duty to provide for all children in need.  See Mooney v London Borough of Southwark in the free cases database.

The court granted a declaration that it was in the best interests of a patient, who was in a persistent vegetative state, to undergo a course of drug treatment over a period of three days to determine whether any beneficial effect resulted, before the making of any further declaration as to the lawfulness of discontinuing medical treatment. See B NHS Trust v J in the free cases database.

Follow this link for amendment regulations regarding NHS functions or go to the legislation section of the law database  http://www.opsi.gov.uk/si/si2006/20060359.htm

Guidance has been published to remind PCTs of their responsibilities concerning maladministration and redress at http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_073094 

or go to the links page.

A commencement order for the Mental Capacity Act 2005 has been published bringing into force certain sections of the Act, including s44 neglect or ill treatment of a person lacking capacity, from 1st April 2007.  Follow the link 

http://www.opsi.gov.uk:80/si/si2007/20070563.htm  or go to the legislation section in the law database.

An NHS Trust was found to be liable in negligence for the injuries caused to six of its nurses during a violent attack by a patient detained under the Mental Health Act 1983.  See Buck & Others v Nottingham Healthcare NHS Trust in the free cases database.

In reconfiguring its services for clients with learning disabilities, a local authority would not be acting unlawfully, as long as it took due account of a service user's Article 8 rights.  See J & Others v Southend Borough Council in the free cases database.

In Brooklyn House Ltd v CSCI a breach of the Care Home Regulations made under the Care Standards Act 2000, was an offence of strict liability.  It did not matter whether or not the registered person set out to make proper provision for health and welfare, the issue was simply whether proper provision had been made. 

An incapacitated man placed in a care home by a local authority under the common law doctrine of necessity had been deprived of his liberty contrary to Article 5 (1) of the Convention because he was not free to leave and live where and with whom he chose.  See  E & E v Surrey County Council in the free cases database. 

A local authority had not acted unlawfully in making a without notice application for an interim injunction against the wife and carer of an incapacitated man where it had evidence to suspect that she might frustrate a move into hospital by removing him from his nursing home.  See B Borough Council & Mrs S in the free cases database.

Where the needs of a service user changed significantly, an earlier promise by a local authority to accommodate him in a supported living environment did not create a legitimate expectation and was not therefore enfoceable.  See Lindley v Tameside Metropolitan Borough Council in the free cases database.

A PCT sought a possession order for a part of the hospital occupied by one of its in-patients who had no medical reason to be in hospital and who had refused to co-operate with the discharge process.  See Barnet PCT v X in the free cases database. 

The amenability to judicial review of decisions taken by private contractors providing services for local authorities and local authorities' obligations under Article 8 ECHR was considered by the court in Haggerty v St Helens Council .

The provisional listing of a care worker on the POVA list was a breach of Article 6(1) and Article 8 ECHR.  See Wright & Others v Secretary of State for Health in the free cases database.

Follow the link below to information on the recently published Mental Health Bill  http://www.dh.gov.uk/PolicyAndGuidance/HealthAndSocialCareTopics/MentalHealth/MentalHealthArticle/fs/en?CONTENT_ID=4140596&chk=GudftE

In a recent judgement, the High Court provided useful guidance on the level of care required by a public body when deciding to publish sensitive medical information and how such information can be disclosed without breaching the provisions of the Data Protection Act 1998.  See Stone v South East Coast Strategic Health Authority in the free cases database.

Follow the link below to the DH website for anonymised copies of its statutory arbitration findings about ordinary residence, obtained as a result of a Parliamentary Question.  http://www.dh.gov.uk/PublicationsAndStatistics/FreedomOfInformation/EreadingRoom/EreadingRoomArticle/fs/en?CONTENT_ID=4140018&chk=ejpsEA

An award of interest on monies reimbursed to a claimant for his care and accommodation (which should have been provided free as NHS continuing care) could be tailor-made to fit the facts of the case.  See Kemp (a patient by his litigation friend) v Denbighshire Local Health Board in the free cases database.

A patient made claims of defamation of character following his involvment with mental health professionals.  In order to establish his claim he needed to show bad faith or lack of reasonable care by those professionals as required by s.139(1) of the Mental Health Act 1983.  See Lebrooy v London Borough of Hammersmith in the free cases database.

The issue of an alert letter by the Regional Director of Public Health about the risks posed to vulnerable patients by a doctor was lawful, despite the fact that he had been never been found guilty of any wrongdoing by a prosecutory or regulatory body.  See R (D) v Secretary of State for Health in the free cases database. 

A local authority's delay in properly assessing the contribution that a disabled man was required to make towards adaptations to his home, was maladministration.  See Ombudsman's Report on an investigation into a complainst against Stafford Borough Council in the free cases database.

Adaptations to a person's home under s.2 Chronically Sick & Disabled Person's Act 1970 should be carried out within a reasonable period of time.  See Ombudsman's Report into an investigation into a complaint against the London Borough of Croydon in the free cases database.

New regulations have been published on Independent Mental Capacity Advocates at http://www.legislation.gov.uk/si/si2006/draft/20064825.htm  and http://www.opsi.gov.uk/si/si2006/20061832.htm

A competent adult and British citizen effectively ‘applied’ for declaratory relief through her litigation friend, taking the initiative on the basis of information received via the Foreign and Commonwealth Office that she was being forced to marry against her will.  See Re SK in the free cases database

The High Court held that its inherent jurisdiction could be exercised in relation an adult even if not suffering from any kind of condition or clinically-related mental incapacity, who was reasonably believed to be incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors.  See A Local Authority v SA (by her children's guardian LJ) in the free cases database

It was reasonable for a Muslim woman in a persistent vegetative state to be cared for at home, contrary to the wishes of her NHS Trust, so that due regard could be given to her personal dignity and religious beliefs.  See Syeda Ahsan in the free cases database

Two new sets of Regulations covering Care Homes in England & Wales have been published and can be viewed in full by following the links http://www.opsi.gov.uk/si/si2003/20031703.htm#note3 and http://www.opsi.gov.uk/si/si2006/20061493.htm  They can also be found in the Legislation & Guidance section of the free law database

Recent guidance has been issued by the DH on the role of the Director of Adult Social Services.  http://www.dh.gov.uk/Consultations/ResponsesToConsultations/ResponsesToConsultationsDocumentSummary/fs/en?CONTENT_ID=4134606&chk=YgE1iV

An amendment to the NHS complaints regulations has been published.  Follow the link http://www.opsi.gov.uk/si/si2006/20062084.htm and for further information http://www.dh.gov.uk/PolicyAndGuidance/OrganisationPolicy/ComplaintsPolicy/NHSComplaintsProcedure/NHSComplaintsProcedureArticle/fs/en?CONTENT_ID=4086786&chk=HQcXVD

CSCI has published a consultation document outlining the new framework for performance assessment of adult social care services.  Follow the link http://www.csci.gov.uk/pdf/paf_consultation_010806.pdf

Belinda's response to the DH continuing NHS care consultation is available on the site for free - follow or paste this link if it would help you in the writing of yours. http://www.careandhealthlaw.com/Public/Index.aspx?ContentID=-68

The DH has launched a scheme which will allow people to self assess their need for long term health and social care services.  Follow the link http://www.gnn.gov.uk/environment/fullDetail.asp?ReleaseID=218918&NewsAreaID=2&NavigatedFromDepartment=False or go to the Links Page.

Homelessness Code of Guidance for local authorities has been published which replaces previous guidance.  Follow the link below or go the Links Page. http://www.communities.gov.uk/pub/625/HomelessnessCodeofGuidanceforLocalAuthorities_id1501625.pdf 

Where expert evidence at trial doubted the testamentary capacity of a testator then the burden of establishing that capacity lay on those seeking to establish it.  See Sharp & Bryson v Adam & Adam in the free cases database. 

Healthcare professionals responsible for investigating suspected child abuse did not owe the suspect a duty resulting in damages if they carried out their investigation carelessly but in good faith, although they did owe a duty of care to the child victim.  See JD & Others v East Berkshire NHS Trust in the free cases database.

A 17-year-old who became unintentionally homeless and provided with temporary housing under the Housing Act 1996 was not automatically a "child in need" or a "relevant child" under the Children's Act 1989.  The local authority was entitled to deal with her under the Housing Act 1996.  See R (on the application of M) v Hammersmith & Fulham LBC in the free cases database.

An application to set aside accounts by a receiver under the Mental Healh Act 1983 in relation to the maintenance of a patient was refused, since the accounts provided to the Court of Protection for approval were not fraudulent or misleading.  See Bunting in the free cases datatbase. 

A charity providing social housing was carrying out business activities and therefore did not qualify for a zero-rated certificate for VAT purposes.  See Riverside Housing Ltd in the free cases database. 

The standard of proof that a detaining authority needed to meet under sections 72 & 73 Mental Health Act 1983 was the civil standard of proof.  See R (DJ) v Mental Health Review Tribunal in the free cases database.

The rules for the new Court of Protection are now available for consultation and can be found at http://www.dca.gov.uk/consult/mentalcapacity/consultation1006.pdf

The Bournewood proposals on protective care are now available at http://www.dh.gov.uk/assetRoot/04/13/68/45/04136845.pdf

An assessment of need under Part IV of the Children's Act 1989 was not the same as a care plan. A care plan had to identify what would meet need so that the outcome would be that the need would be met.  See LH & MH v Lambeth LBC in the free cases database.