West Sussex County Council taken to task by the High Court in relation to the exercise of its safeguarding functions – an important Judgment for all care providers

West Sussex County Council taken to task by the High Court in relation to the exercise of its safeguarding functions – an important Judgment for all care providers

The High Court has held that the decisions of West Sussex County Council made at a safeguarding case conference concerning allegations of abuse at a care home should be quashed as those decisions had been unfairly and unlawfully reached.

The Judgment in (1) Mary Davis (2) Philip Davis v West Sussex County Council (22 August 2012) will have significant implications for the way safeguarding investigations are conducted across the country by local authorities. It was a judicial review application focussing on safeguarding procedures rather than the merits of the findings.

The key issues arising from the Judgment are as follows:

Natural Justice

West Sussex instituted a safeguarding investigation in April 2010 following allegations of abuse.  The owners of the care home, Mr and Mrs Davis, (“the Claimants”) sought from the local authority particulars of the allegations.  West Sussex refused to supply the information but stated that they would be given an opportunity to respond to the allegations before the Case Conference.  This accorded with West Sussex’s own local guidance which stated that a copy of the Investigation Report should be supplied at least two days in advance of the Case Conference.  A written assurance was also given to the Claimants that the Investigation Reports would be shared in advance of the Case Conference to enable the provider to prepare a detailed response.  In the end, the Case Conference was convened for 9.30am on 10 December 2010 but the Investigation report was only received at 7pm on 8 December. Attempts to get an adjournment were rejected and the meeting went ahead. Mrs Davis, aged 77 years, attended the meeting on her own which went on for more than 8 hours. There were 10 people on the local authority side.  The Judge describes Mrs Davis’ treatment at and around the meeting as“deplorable.”          

The Case Conference concluded that 14 allegations of abuse were substantiated and 10 were inconclusive. An allegation of “institutional abuse” was found substantiated. Mr Purchase, the barrister for the Claimants, stated at the hearing that serious findings of abuse were made about which the Claimants were not given an opportunity to put their case.  He added that the findings of the Case Conference were inconsistent with or unsupported by the findings of the Care Quality Commission, professional bodies (who had decided not to proceed to investigate individuals referred to them by West Sussex) and to some degree the decisions of the police who had decided not to take matters further.  His Honour Judge Mackie QC agreed with the case put forward on behalf of the Claimants. The Judge writes, “The decisions continue to cast a shadow over the Claimants and their present and former members of staff.”  He was also concerned that “there had been no recognition by the Defendant (the Council) that it had acted in any respect unjustly or inappropriately…In these circumstances a quashing order is necessary and appropriate.”  Basically this means that the decisions have been set aside by the Court.

This Judgment reinforces the importance of ensuring local safeguarding guidelines are followed by local authorities, particularly in relation to disclosure of allegations whether at the beginning of the process or in the eventual Investigation Report.  In our experience, local authorities frequently refuse to disclose allegations.  It will be important at the same time to obtain assurances from the local authority that at the very least, the allegations will be disclosed in advance of the Case Conference to enable the provider to respond.  The Davis Judgment can be quoted in support of this reasonable request.

Suspensions of employees

Even though it had not disclosed the allegations to the provider, West Sussex insisted on two employees being suspended, the manager and a staff member.  In the end it was agreed that the manager would remain on restricted duties but the staff member would be suspended.  Residents had also asked the proprietors for information about the investigation.  The Judge writes, “It is…difficult to see how the Claimants could suspend two employees without giving them indications of what the reasons for this might be or ignore requests from residents  for information about what was obviously going on in their home. It was not appropriate to characterise requests for information as constituting a failure to co-operate…”

Safeguarding investigations generally

Following the Case Conference in this case, West Sussex served a Default Notice.  Ultimately the provider terminated the contract with the Council.  West Sussex tried to argue that the Claimants could not bring a judicial review challenge as the matters were contractual. The Judge disagreed stating that a safeguarding investigation was clearly a public function. The contractual issues were ancillary.  In fact, only 1 of the 13 residents identified in the investigation was publicly funded by West Sussex.  Providers therefore can take comfort from the fact that the High Court has expressly found that safeguarding is a public function amenable to judicial review.  There may be contractual consequences that flow from the safeguarding process which are private law matters but the safeguarding side is a distinct public law function.

In addition, West Sussex tried to argue that a safeguarding investigation is focussed on adults at risk and ensuring they are safeguarded.  The structure created by No Secrets and the local protocol under which West Sussex operated were not there to protect the financial interests of care home providers. However, the Judge rejected this argument stating that,“while there may be situations where the obligation to protect vulnerable adults justifiably permits a local authority to infringe what might otherwise be the rights of natural justice of third parties no question of this arises here. There was, by December 2010, no respect in which the duty to protect vulnerable adults conflicted with the less pressing obligation to treat other parties affected in a just manner.”   We come across many cases where local authorities treat providers dismissively and unfairly. The Davis Judgment should remind local authorities that providers have a right to be treated fairly, particularly given the investigation and outcomes may have devastating consequences for their businesses and for the staff concerned.