Update: social welfare law

Following YL v Birmingham City Council [2007] UKHL 27 (Solicitors Journal 151/24, 22 June 2007), it seemed likely that self-funding residents in care homes would be unable to enforce their human rights against their care providers, and protection under the Human Rights Act was only available to those whose placement is funded by the local authority. This left an artificial situation, whereby there could be two residents, in adjacent identical rooms, one self-funding and one funded by the local authority, yet only the latter could invoke human rights arguments to prevent the closure of their care home. However, following the Bournewood case in the European Court of Human Rights (HL v United Kingdom, application 45508/99, judgment 5 October 2004), new statutory safeguards are now legislated for by the Mental Health Act 2007, which introduces new provisions into the Mental Capacity Act 2005.

New safeguards for those in residential accommodation

These new safeguards will protect anyone in residential care who is aged 18 and over, and who suffers from a mental disorder or a disability of the mind (such as dementia or a learning disability that affects their level of capacity), and who lacks the capacity to give informed consent when making decisions about their treatment or their care.

The new mental capacity provisions mean that all providers of care in a residential setting must now develop procedures to comply with the new legislative framework, to avoid a possible action for deprivation of an individual's liberty (Art.5 of the European Convention on Human Rights). Deprivation of liberty can occur in circumstances as wide ranging as where a decision is made to confine a person to the home, even if it is for their own safety, to restriction of family and other visits, and trips out of a care home. Effectively where any step is taken that will restrict a person's liberty, prior permission must be sought from a specialist panel or the care home will face liability in the Court of Protection for a breach of the right to liberty. The new procedures must be followed from 1 April 2009 and any care provider, from the smallest of care homes, only offering residential accommodation to one or two people, to larger companies, must comply with the new procedures or be liable.

While the new changes mean the right not to be deprived of liberty can now be enforced against care homes regardless of how a person's placement is funded, it does not apply to other human rights provisions, such as the right to private and family life and enjoyment of home. This distinction may well lead to further litigation. Those advising care homes may want to stress that procedures must be in place to ensure referrals are made to the panel within the strict deadlines. While this places a greater administrative burden on care homes, it means better protection for vulnerable individuals and increased scrutiny of care home practices.

The 'need for care and attention' test

Prior to the recent decision of M v Slough [2008] UKHL 52, asylum seekers and those who are subject to immigration control would only need to show that they fulfil the 'destitution plus' test, i.e. that they were destitute and additionally vulnerable, to receive support and accommodation from social services under s.21(1)(a) of the National Assistance Act 1948. In M v Slough the law lords held that where a person who was HIV positive but had only medical and health care needs (for a fridge to keep their medication cool), and needs for accommodation and food, there was no obligation on social services to accommodate and support that person. The criteria, which are now more in line with those applied to UK residents, when determining whether the duty to house falls upon the housing authority instead of upon social services, is a requirement of 'a need for care and attention'. 'Care and attention', is described as the provision of care or a service to a person which they cannot or should not be expected to do for themselves.

Discretionary housing payments

The case of R (on the Application of Gargett) v Lambeth London Borough Council [2008] EWCA Civ 1450 clarified that a discretionary housing payment can be made to cover arrears of rent.

Under the Discretionary Financial Assistance Regulations 2001 (SI 2001/1167), local authorities are empowered to make payments to recipients of housing benefit or council tax benefit who need further assistance with their housing costs. These are known as discretionary housing payments ('DHP').

Ms Gargett was an assured tenant of a housing association. Her rent was increased in April 2005 and April 2006. Neither she nor the landlord had notified the local authority, Lambeth London Borough Council. Her housing benefit was therefore not increased in line with the rental increases. Rent arrears accrued and the landlord made a claim for possession, which was stayed on terms.

Ms Gargett was then awarded housing benefit to cover her full rental liability, but applied for DHP to help to pay the arrears. Lambeth turned down the application, stating that it had no discretion to award DHP because there was no longer a shortfall of housing benefit. Ms Garrett applied for judicial review, arguing that DHP is not restricted to payment of current housing costs, and therefore Lambeth had unlawfully fettered its discretion. Her application was refused and she appealed.

The Court of Appeal found that, although the restrictions on DHP specified in reg.4 of the 2001 regulations were complex, there was no restriction on the payment of DHP to cover past housing costs in the form of arrears of rent. The Court of Appeal allowed Ms Gargett's appeal, quashed Lambeth's decision, and ordered it to consider Ms Gargett's application afresh.

The decision will be of great help to people who have accrued rent arrears as a result of previous problems with their claim for housing benefit; people in that position are entitled to apply for DHP. However, it will still be at local authorities' discretion whether to make an award.

Entitlement to Jobseekers Allowance

The Upper Tribunal (formerly the Social Security Commissioners) has ruled that a self-employed person who is not currently working may not be in remunerative work (Upper Tribunal decision CJSA/4053/2007 [2008] UKUT 40 (AAC)).

Under s.1(2)(e) Jobseekers Act 1995, Jobseekers Allowance (JSA) is payable only to people who are not in remunerative work (defined by reg.51(1) Jobseekers Allowance Regulations 1996 (SI 1996/207) as work of more than 16 hours per week for which payment is made or expected to be made). This causes difficulties in calculating entitlement where a self-employed person has a period of no work: is that person in remunerative work during a period where they do not have any work?

The claimant in this case was in such a position: he was a self-employed carpenter, and claimed JSA on 9 July 2007 as he had had no work since 8 May 2007. When making his application he stated that the normal break between contracts was 12 weeks. The Secretary of State decided that he was not entitled to Jobseekers Allowance until 4 August 2007 on the basis that this was 12 weeks since the end of his last contract.

The claimant appealed the decision on the ground that the money he had been paid for the contract had run out. The First-tier Tribunal dismissed the appeal on the basis that the claimant was still engaged in his trade as a carpenter so, despite the temporary cessation, he was still engaged in remunerative work. The claimant appealed to the Upper Tribunal.

The Upper Tribunal stated that it was necessary for decision makers to consider four questions in such situations:

1. Is the claimant employed?

2. If so, is the claimant engaged in remunerative work or part-time employment?

3. If so, was the work more than 16 hours per week? Where hours of work are irregular and there is not a regularly identifiable pattern of employment, reg.51(2) of the 1996 regulations require decision makers to calculate average hours worked over the previous five weeks or such other period as would be appropriate.

4. If, after the question above has been answered, the claimant works less than 16 hours per week, should her or his earnings be taken into account? Normally, the claimant's earnings should be averaged over the entire year but, again, an alternative period can be used if appropriate (reg.95(1) of the 1996 regulations).

In the instant case, the Upper Tribunal decided that the claimant was employed because he had not ceased trading, and that he was, because a wait for new work is a normal part of his self-employment, in remunerative work. However, the tribunal decided that the Secretary of State and the First-tier Tribunal had not adequately addressed the second two questions. If the five-week period was used, the answer to the third question would clearly be no, but it may have been necessary, in the circumstances, to look at the pattern of work over a longer period. As the claimant appeared to have only had one week's work over the previous three months, this suggested that his average hours were less than 16 per week, and that he was therefore entitled. The DWP should then have gone on to calculate his income for the same period to establish if he was financially eligible. However, depending upon his pattern of work prior to 1 May, the DWP may have wished to look at the pattern of work over a longer period if his employment had been particularly heavy before 1 May.

It was therefore clear that the Secretary of State's enquiries had been insufficient to establish if there was an entitlement, and the Upper Tribunal remitted the matter to the First-tier Tribunal with a direction that the Secretary of State make the necessary enquiries and either revise the decision or make a further submission to the tribunal.

The case is notable for the guidance given on establishing whether a person who is self-employed but not currently working is entitled to JSA.