Caring Times: Providers Successful Judicial Review of Safeguarding

Topics covered: Ridouts professional advice

August saw one of the most important judgments for the care sector since the run of fees cases last year.  Two care providers in West Sussex successfully challenged the local authority’s conduct in a safeguarding investigation concerning their care home.

The local authority had for many months withheld information about the allegations from the provider.  The providers’ requests for details were unfairly criticised by the local authority as an attempt to disrupt the process and a possible breach of the NMC Code of Practice. The local authority finally provided a 22 page report at 7pm on the 8 December.  The case conference was scheduled for 9.30 on the 10th December.  The local authority rejected requests for the conference to be postponed.

Mrs. Davis, who was 77 years old at the time, attended the case conference.  She brought the acting manager with her for support but she was refused admission on the basis that she was an alleged perpetrator.  Mrs. Davis then faced an 8 hour case conference against ten officers of the local authority even though she was unsupported and, not being in day to day control of the home, was not best placed to answer the allegations.

Mrs. Davis handed up a copy of the letter from her solicitors of previous day but the chair refused to consider it or show it to the others present.  Mrs. Davis initially tried to follow her solicitor’s advice not to answer questions but as time passed, she did go on to answer some questions.  The local authority did not see anything wrong with relying on her answers.  During lunch, Mrs. Davis made an informal remark which she was unfairly told to repeat during the meeting.  The case conference went on to uphold 14 allegations of abuse, despite the fact that the police had found no case to answer, the residents’ families were supportive and Mrs. Davis had not been given a proper opportunity to respond to the allegations.

The judge quashed the findings of the local authority, describing its conduct as ‘deplorable’.   He held that just because the purpose of safeguarding is the protection of vulnerable people was no reason to behave unfairly to those being investigated.  He also held that safeguarding was a public function that was amenable to judicial review, rather than a matter of contract between a local authority and its provider.

Many local authorities up and down the country have for years abused their safeguarding powers, behaving unfairly and treating providers in a similar way to Mr. and Mrs. Davis.  It is now clear that the law is on the side of providers in such cases and that courts will intervene in appropriate cases.  Where local authorities are behaving unreasonably, they should be reminded of this firmly and promptly.  Many providers will breathe a sigh of relief at the judgment which has been a long time coming.

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