This section contains information about recent case law and reports from the Local Government and Social Care Ombudsman in relation to complaints made against local authorities:
For summaries of key mental capacity and Court of Protection decisions, see: Mental Capacity Law Cases (39 Essex Chambers) and England and Wales Court of Protection Decisions (BAILII)
August 2023: Ordinary Residence
R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31
The Supreme Court overturned the Court of Appeal findings that first and originating local authority Worcestershire County Council had a duty to provide aftercare services rather than the second or host local authority Swindon Borough Council for an adult who had been re-detained in Swindon. The Supreme Court determined that after the person’s second discharge, Swindon had a duty to provide aftercare services, not Worcestershire. The case turned on whether the person, ‘JG’, had been “ordinarily resident…immediately before being detained” for the purposes of s 117(3)(a) of the MHA.
Worcestershire successfully argued that Swindon owed a duty to provide aftercare services, at the time of the second discharge, because the person had been ordinarily resident in Swindon immediately before the second detention. It was concluded where there had been more than one period of detention, the words ‘immediately before being detained’ must refer to the most recent period of detention. The Supreme Court found that although the person lacked mental capacity to decide where to live, the decision to live in Swindon was still made voluntarily “because it was the result of a choice made by those with the power to make decisions on their behalf.” The person’s residence in Swindon was also adopted for settled purposes, therefore, they were ordinarily resident in Swindon before their second detention on its plain meaning.
July 2022: Care Act Interpretation
A council wrongly stopped funding family holidays for two disabled brothers by adopting a “restrictive and wrong” interpretation of the Care Act 2014. The Court of Appeal rejected an appeal brought by Suffolk County Council against a High Court ruling last year that quashed its 2020 decision ending funding for the holidays for the men.
March 2022: Deprivation of Liberty Safeguards
A man, who has autism, was unlawfully deprived of his liberty in a care home for seven years by Lancashire Council. The Council admitted breaching his human rights and agreed a £200,000 settlement and a payment of £155,000 for a deputy to manage his property and affairs on his behalf. This was approved by the High Court.
November 2021: Mental Capacity and Sexual Consent
JB appealed the Court of Appeal decision that he lacked capacity to engage in sexual relations, but his appeal was dismissed. The Supreme Court dismissed the appeal and found that ‘Information relevant to that decision includes the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity. Under section 3(1)(a) MCA, JB should be able to understand that information and under section 3(1)(c) MCA he should be able to use or to weigh it as part of the decision-making process. Applying the test in section 2(1) MCA on the available information, JB is unable to make a decision for himself in relation to that matter because of an autistic impairment of his mind’. The matter was remitted to a different Judge in the Court of Protection to determine the issue of capacity to engage in sexual relations as new information was available. For more details, see A Local Authority v JB.
LGSCO reports are usually published some months after the decision date.
This report shares the learning from LGSCO investigations to help councils, and other local services, meet their legal duties to ensure everyone has an equal opportunity to access their services, whatever their needs. The report identifies a number of positive steps councils can make to improve services, including reviewing staff training needs around the Equality Act 2010, incorporating Equality Act duties in contracts when commissioning services from external suppliers, and retaining alternative contact methods for people with alternative needs when moving services online.
November 2021 (decision date): Mr X complained about the quality of care his wife received at a Lancashire County Council commissioned care home. The LGSCO found the care home and the Council were at fault and that the safeguarding investigation failed to uncover harmful care, relying heavily on provider evidence.
October 2021 (decision date): A woman was left malnourished and without the support she needed for her medical conditions because Gloucestershire County Council ignored professional advice, a Local Government and Social Care Ombudsman investigation found.
September 2020 (decision date): An elderly couple of 59 years were split up with little regard for their welfare by Royal Borough of Windsor and Maidenhead, the Local Government and Social Care Ombudsman has found.
