A discussion of Davis & Anor v West Sussex County Council 2012
I’m always mindful that I do much less blogging on adult social care than I would like. Child protection work is my day to day bread and butter, so that’s invariably my focus, but I do like to discuss adult social care when I can, and I’ve neglected it recently.
So, given a combination of insomnia and this interesting case, the opportunity arises.
This was a judicial review brought by owners of an adult care home against the Local Authority’s decisions at a safeguarding case conference that 15 allegations made against staff were substantiated and 10 allegations made against staff were “inconclusive” and that the staff should be referred to the Independent Safeguarding Authority and the Nursing and Midwifery Council for possible disciplinary action. To cut to the chase, the claimants won the jr, and the decisions of that case conference were quashed.
So what went wrong, and how can that be avoided in the future?
The Claimants main objections to the process, all vigorously challenged by the Defendant, are that;
(a) They were not given adequate notice of the allegations made against them so as to allow them a fair opportunity to present their case at the Case Conference. They were only provided with a copy of the very substantial Investigation Report – which set out the allegations for the first time, albeit in unclear form – one working day before the Case Conference.(b) They were not shown the evidence against them.
(c) The Case Conference was not shown relevant evidence generated by the investigation, both for and against them.
(d) They were not permitted, or given an adequate opportunity, to produce relevant evidence to the Case Conference, whether through witnesses or otherwise.
and we can already see, by paragraph 3 of the judgment, that this is probably not going to end well for the Local Authority. If those objections are made out, the LA are going to lose, on the article 6 point if nothing else, but almost certainly it would be unreasonable to make determinations that affect the individual livelihoods and career of staff and the financial viability of the organisation as a whole without them having proper opportunity to defend themselves. (I hasten to add that these claims were vigorously challenged by the Local Authority)
The case very helpfully sets out the statutory and binding guidance framework for conducting safeguarding investigations, and would be a useful starting point if one wanted to get to grips with what the duties and requirements are. (The joy of case law is that it often sets out all of the background knowledge in one neat place, saving you hours of leafing through separate sources or even locating what those sources might be)
What is interesting about this case is that of course there was a contract between the LA and the claimant for the provision of these services. The claimant ran their case largely on public law grounds (i.e that this was an administrative decision of a public body which must be taken in a Wednesbury reasonable manner) and the LA largely on contractual grounds (i.e that the issue of investigations, cooperation with them, being bound by recommendations, dispute resolution etc were all contained in the contract, and this was a contract dispute – and ultimately that the decision was about whether to renew the contract that existed between the Claimant and the LA)
This is interesting, at paragraph 26 (and was the part on @celticknottweet ‘s tweet that led me to dig a little deeper)
It is not the function of this court to decide whether or not abuse took place. The court is concerned with the process by which allegations were investigated. There is some disagreement about the long and complex dealings between the parties over a lengthy period and Mr McGuire QC for West Sussex places emphasis on what he describes as ‘the true factual context’.
So, it would not matter if the allegations had merit or substance, the JR court would not be looking at that – they would be looking at whether the process of investigation and opportunity to defend and decision-making process was fair, not whether or not the abuse alleged had taken place. The Court was not conducting a judicial determination of the allegations, merely the process.
On that very issue, here is the nub of the judgment – the case against the Claimants and their staff was produced in a 22 page report at 7pm on 8th December, for the conference on 10th December. The Claimants request for the conference to be adjourned to allow them time to consider the report and respond in writing was refused. Two members of staff were refused admission to the conference (the Court accepted that there were legitimate reasons for this) but that decision made on the day, allowed there to be nobody present at the Conference who could speak to the day to day running of the home. The meeting lasted for 8 hours, and there were “ten on one side and one on the other” – the Claimant handed a solicitors letter to the Chair who declined to show it to anyone else.
- By the middle of 8 December nothing further had been heard from West Sussex about the conference set for 10 December and Mrs Hillary-Warnett sent a reminder to the Council which responded at 4pm confirming that the conference would proceed at 9.30 on 10 December and that a copy of the report would be hand delivered. This was received at 7pm on 8 December. It was 22 pages long alleging abuse against thirteen residents of Nyton House (five of whom had since died).
- The Claimants submit that the report is incoherent and unclear about what is being alleged against whom. The report referred to the investigations as having been ‘extensive and complex’ and it had taken seven and a half months to produce. However for much of that time the police had been the lead investigator and it had been difficult for West Sussex to carry out the necessary and important work. Of the thirteen residents identified in the report only one had been placed at Nyton House under the Contract. Every relative of a resident at Nyton House that had been questioned was positive about the quality of care provided.
- Mrs Davis’s evidence, unsurprisingly, is that she was quite unable to deal with the report in the very short time available. On 9 December the Claimants’ solicitors wrote to Mr Yong pointing out the difficulties of holding a Case Conference within the proposed timescale and proposing an adjournment for something over ten days so that Mrs Davis could consider the report and provide a written response within seven to ten days. The solicitors suggested as an alternative that ‘no expectation or pressure’ be put upon Mrs Davis at the next day’s Case Conference to respond and that she should be given the opportunity to provide a detailed written response within seven to ten days. The solicitor could not themselves have attended at such short notice.
- So Mrs Davis attended the Case Conference but took with her for support Mrs Hillary-Warnett, Ms Hillary who was the acting manager and, apparently, a Mr Fieldhouse the son of one of the residents. Mr Fieldhouse apparently soon left. Mrs Hillary-Warnett was refused admission on the basis that she was an alleged perpetrator, a decision understandable in the circumstances. Ms Hillary was also refused admission for similar reasons. So no one remained who was able to speak to day to day management issues at the home. Mrs Davis then attended the meeting alone. She was 77 years old and faced ten members of the safeguarding authorities, eight of whom were employees of West Sussex. Mrs Davis handed up her solicitors’ letter of 9 December but Ms Attwood, the chair declined to consider it or to show it to the others present.
- The meeting lasted more than 8 hours. It is unclear what documents were available to the panel. Mr McGuire emphasises the extent of the discussion at Mrs Hillary-Warnett’s interview with the police, at which all matters complained of were apparently covered. However there is nothing to suggest that the record of the interview was disclosed or discussed with the panel despite the fact that it must have been one of the factors leading the police to decide to take no action. It does not appear from the record that notes of other interviews were available to the panel either. West Sussex, surprisingly, relies on the fact that Mrs Davis did not herself at the conference ask to have the matter adjourned. But it was or should have been obvious that she wanted it adjourned because her solicitors had written to say so and Mrs Davis had reminded the meeting of the letter. Ms Attwood points to the fact that Mrs Davis started by making it clear that she was going to follow her solicitors’ advice to make no comment but then chose to go on and comment on a number of occasions. There was no indication that West Sussex saw anything amiss in relying on what this elderly lady went on to say, despite knowing of her solicitors’ advice. During the lunch break which according to Ms Attwood was ‘relaxed’ Mrs Davis made a remark to her informally. Ms Attwood “suggested … that she share these comments with other attendees when the meeting reconvened and she agreed and … repeated this statement towards the end of the meeting”. This was unfair.
- West Sussex was aware of Mrs Davis’s limited role as owner not manager of Nyton House. The chair refused an adjournment, gave Mrs Davis no proper opportunity to prepare for the meeting, refused even to consider her solicitors’ letter, continued for eight hours knowing that she was an elderly lady, where the meeting was ten on one side and one on the other and where even the informality of a brief lunch break was abused. Nevertheless conclusions were drawn about Mrs Davis’s credibility and her fitness to own a care home. These were in part based on detailed matters relating to individual carers and patients (see paragraph 18 of Ms Attwood’s statement) which West Sussex knew or should have known were outside Mrs Davis’s knowledge given the impossibility of looking into all these allegations in such an absurdly short time and its decision (for reasons which were of themselves legitimate ) to exclude from the meeting those who would have had the answers . West Sussex, as Mr McGuire put it, considered that Mrs Davis had ‘made a long series of admissions’.
- The Case Conference concluded that fourteen allegations of abuse were substantiated and ten were ‘inconclusive’. An allegation of ‘institutional abuse’ was found to substantiated based amongst other things on an ‘incestuous management and ownership structure’, an odd description of a family business. The conference imposed 45 ‘actions’ mainly on Nyton House. They also, referred, with potentially devastating professional and personal consequences, Ms Hillary, Ms Bidwell and Ms Hillary-Warnett to the ISA and NMC.
- The policy required minutes of the Case Conference and its outcomes to be sent to the Claimants within five days but these were not received within that time but delivered to the Claimants thirteen days later on 23 December with a request to respond within seven days (which would have been 31 December) shorter than the ten days permitted by the policy.
- It is not necessary for my decision for me to evaluate the quality of the decisions taken at the Case Conference but, having looked at the relevant material it seems to me that the submissions that there were serious flaws in the Defendants’ approach, for the reasons set out in paragraph 89 of Mr Purchase’s written argument, are well-founded. The object of the Case Conference was primarily to investigate allegations in the interests of protecting vulnerable adults, not to make determinations about Mrs Davis or the Case Conference and so it is understandable to a degree that West Sussex did not see the vulnerability of Mrs Davies as a concern.
and then this
52. West Sussex had started to investigate the allegations in April 2010 and, partly as a result of the police intervention, had not reached or communicated its conclusion orally until 10 December. It had not communicated its conclusions in writing until 22 December. It is hard to see how a responsible council genuinely seeking the views of the Claimants could have expected them to respond within a ludicrously short timescale set to expire on 31 December in the middle of what, for so many, is the Christmas and New Year break. In the event the council extended the deadline to 21 January 2011 and on 24 January the Claimants’ solicitors submitted a response running to 45 pages with a further eleven pages of attachments.
[This is the bit in the judgment, where if you’re for the Local Authority, you know beyond any doubt that you have lost on the public law case, your only hope is that the Judge agrees with your primary case that this is a contractual dispute, not a public law dispute. You are probably not optimistic about the prospects of that, at this point]
- Mr Purchase contends that the decisions of the Case Conference were made in the exercise of a public function. It was attended and conducted by members of public bodies carrying out their various statutory functions and to protect residents of care homes from abuse. Those functions are controlled by governmental guidance and published local policy and do not derive from contract. The point is starkly illustrated by the fact that only one of the residents who are alleged to have been abused was placed at Nyton House by the local authority under the Contract. He submits that while there is a contractual dispute following on from the allegations of abuse and the action taken by West Sussex following the decisions at the Case Conference there is no challenge to the Defendant’s exercise of its contractual rights in stark contrast with the facts in Caerphilly (a case in which Weaver was not cited and, which Mr Purchase argues, is wrong).
- I follow the guidance given by the Court of Appeal in Supportways and Weaver. In Supportways the question was whether a review which led to the decision not to renew a contract was a public law matter. As I read the judgments an applicant for a judicial review who has a contract with the body sued must establish a relevant and sufficient nexus between the matters complained of and the alleged unlawful exercise of public law powers. The caution about permitting a public law remedy does not apply to the same extent if the issue is not, as Neuburger LJ put it, ‘fundamentally contractual in nature’. The issues here are not fundamentally contractual or, to borrow the words of Elias LJ, ‘in the nature of a private act’.
- West Sussex responded to allegations by starting an investigation under its regulatory powers which was to lead to findings of abuse of thirteen residents at Nyton House only one of whom was there under a contract with West Sussex. The original complaint led swiftly to the exercise of the contractual power of suspension about which the Claimants’ solicitors corresponded. At different points in the investigation notices were given under the Contract. The Claimants’ solicitors’ letters referred to contractual rights, as well as to those under public law but there are also letters from West Sussex indicating that the two are seen as separate matters. When the decisions now challenged were taken at the Case Conference in December 2010 Default Notices under the Contract were soon given and one of the West Sussex employees present at the conference Mr Ian McCarthney attended because his responsibilities were for management of contractual matters. But it is plain that the investigation would have been carried out whether or not a contract had been in place between the parties as would the process of conference and decision-although the actions to be taken as a result would have differed. West Sussex issued Default Notices under the contract following the case conference but this was one of a series of steps consequent upon the decisions. It seems to me that West Sussex was rightly and primarily concerned with investigating allegations of abuse under its legal powers.
- The contractual issues were ancillary. There is no direct challenge to the contract in this case. The Claimants originally sought to quash the Default Notice, a grievance for which a private law remedy was available. Their other complaints are some distance from the contract. The contractual remedies would have been inadequate because these are essentially public law claims. The decisions were not about whether or not to continue a contract or to change its terms, they were about whether or not abuse had been established and if so what the consequences would be in a number of areas, only one of which was the contract. The Claimants are trying to clear their names from what they see as unfair findings of abuse by West Sussex (but not by the other public agencies concerned) and protect their staff from what they see as unfair referrals to professional bodies. In essence these are public law not contractual concerns.
- When taken together the factors cumulatively 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. So this defence fails.
These investigations are hard for a Local Authority. They have a duty of care to the people placed in these homes, and once the police conclude their investigation, there is obviously a time pressure to take appropriate safeguarding action. But in a case such as this, where the police were investigating from April to December, having a meeting with only one working day for the organisation under investigation to respond to the report was always going to be problematic. I suspect in retrospect (a place where wisdom comes easily) there is regret in not having accepted the request to adjourn for 10 days.