Most of the community care areas that were in scope pre-LASPO remain so now, but it is a category that is not widely understood and encompasses disparate areas of the substantive law.

The Legal Aid Agency’s 2014 standard civil contract category definitions define community care as:

However, for clients who might expect to recover some money, there is one benefit to the complaint/LGO route: the work that a solicitor does to assist them in pursuing a complaint will be done at the legal help level of funding, so any money recovered is not liable to the statutory charge, and the client can keep it. The LGO is also flexible: it can recommend remedies (such as the instruction of an independent social worker to review an assessment or a care plan) that the Administrative Court cannot order. Local authorities are not obliged to accept the LGO’s recommendations but they usually do and an unreasonable refusal to do so may itself be amenable to judicial review.

Care Act 2014 s72 contains the statutory basis for establishing, by way of regulations, a system of ‘appeals against decisions taken by a local authority in the exercise of functions under this Part in respect of an individual’. To date, no such system exists. The consultation on the policy proposals for a new appeals system for care and support (as well as on the draft regulations and guidance to implement the cap on care costs) ran from February to March 2015; the results of that consultation are awaited. If it were ever to be created, clients would probably be required to exhaust it before resorting to judicial review. Some local authorities have already established their own internal ‘appeals’ processes, of varying degrees of independence and effectiveness.

That the duty in s17 is a general one, not owed specifically and enforceably to each child in need within an authority’s area, was confirmed over a decade ago: R v LB Barnet ex p G and other appeals [2003] UKHL 57, 23 October 2003. It is a continued source of confusion and frustration, in particular when now contrasted with the comparatively clear and accessible framework for assessing and meeting the needs of adults that is created by the Care Act 2014. In practice, the statutory guidance (Working together to safeguard children) expands on, and to some extent bolsters, the relatively sparse duty described in the primary legislation.

One of the most heavily litigated questions about s17 in recent years is the extent to which it requires a local authority to support (by way of accommodation and subsistence payments) families who have no recourse to public funds by virtue of their immigration status and no other means of support. Local authorities, especially in London, have largely been left to bear the brunt of government policy and primary legislation aimed at excluding those families from other sources of support.

The interaction between the Children Act 1989 and the relevant immigration legislation, in particular Nationality, Immigration and Asylum Act 2002 Sch 3, is especially complicated. The upshot of the decisions in Birmingham City Council v Clue [2010] EWCA Civ 460, 29 April 2010 and R (VC and others) and another v Newcastle City Council [2011] EWHC 2673 (Admin), 24 October 2011 is that families who would be entitled to support from the Home Office under Immigration and Asylum Act 1999 s95 should be required to access that support, but those whose only entitlement to Home Office support would be via s4 (those who are ‘failed’ asylum-seekers or not asylum-seekers at all) are entitled to look instead to a local authority for support under Children Act 1989 s17.

More recently, the focus has been on the extent to which a family is required to co-operate with a local authority’s investigations into how it has been supporting itself before asking the authority for help (eg N and N v LB Newham and another [2013] EWHC 2475 (Admin), 9 August 2013). It remains to be seen how proposed further restrictions on access to asylum support for ‘failed’ asylum-seekers in the Immigration Bill will impact on the number of families who are supported under s17, but it is hard to see how it could do anything other than increase the burden on local authorities, at least in the short term.

Children Act 1989 s20 requires local authorities to accommodate children in need in their area who appear to require such accommodation. Despite repeated judicial criticism at the highest level, and clear and long-established statutory guidance, practitioners still regularly come across local authorities that try to avoid accommodating homeless 16- and 17-year-olds under s20, either by purporting to accommodate them instead under s17 (see R (G) v LB Southwark [2009] UKHL 26, 20 May 2009) or by diverting them to homelessness services and accommodation under the Housing Act 1996 (see M v LB Hammersmith and Fulham [2008] UKHL 14, 27 February 2008). The motive appears to be to avoid looking after the young person for long enough that they will, on turning 18, be a former relevant child and therefore owed duties as such at least until the age of 21. The unlawfulness of these practices is so clearly established that authorities regularly back down on receipt of pre-action correspondence. If they do not, firms with the necessary authorisation retain the power delegated from the LAA to authorise emergency legal aid funding for challenges brought under s20, so that cases can, where appropriate, be brought urgently to the Administrative Court. (Section 20 is one of the few provisions in respect of which these delegated functions can still be used. Notably, they cannot be used for s17 cases, so challenges in respect of homeless families will require an urgent email application to the LAA. These can, in theory and sometimes in practice, be decided within hours.)

Children Act 1989 s23C sets the criteria for establishing whether a young person is a former relevant child. Essentially, a young person who has been looked after for a total of 13 weeks, at least one day of which was after their 16 birthday, will be a former relevant child. Challenges can be brought against a local authority’s refusal to accept that a young person is a former relevant child. Such challenges have been successful where a local authority purports to have accommodated under s17 (R (G) v LB Southwark) or under the HA 1996 (M v LB Hammersmith and Fulham). More recently, an argument that a local authority was required to treat as a former relevant child a young person whom they had wrongly assessed to be an adult and had therefore allowed to be accommodated by the Home Office, was rejected: R (GE (Eritrea) v Bedford Borough Council [2014] EWCA Civ 1490, 20 November 2014. The court said, however, that a local authority did have a discretion to treat a young person as if they were a former relevant child, if the circumstances required it.

Local authorities must maintain and regularly review, for every former relevant child, a pathway plan, which describes the young person’s ambitions and the support they will be given to meet them, and will have to appoint someone to act as their personal adviser. There are specific duties to support the young person to remain in education, including meeting the costs associated with doing so. There is no direct equivalent to s20, so a local authority is not usually directly obliged to accommodate the young person. Ordinarily, they can discharge their duties by supporting the young person to access ‘mainstream’ housing support. For young people who are prevented from accessing such support by their immigration status, the local authority may have to continue to accommodate them: R (SO) v LB Barking and Dagenham [2010] EWCA Civ 1101, 12 October 2010.

In 2014, the CFA 2014 put on a statutory footing the practice of ‘staying put’ arrangements. Authorities are now required to give support to a young person who wants to remain with their former foster carers on turning 18, provided that the authority considers it appropriate to do so. It is likely that the court will soon be asked to consider how that duty operates in respect of severely disabled care-leavers with extensive (and therefore expensive) care needs. Would a local authority be allowed to take the costs of care at home into account when considering whether it is appropriate to support a staying put arrangement?

The Care Act 2014 requires local authorities to carry out a needs assessment for every adult who it appears ‘may have needs for care and support’ (s9) unless that adult, having capacity to do so, refuses to have such an assessment (s11). The threshold for triggering is not intended to be a high one. The assessment must involve the person being assessed and anyone (eg a carer and/or a family member) that person thinks should be involved.

Having carried out the assessment, the local authority must determine (s13), whether any of the needs identified meet the eligibility criteria. The eligibility criteria are defined nationally in the Care and Support (Eligibility Criteria) Regulations 2015 SI No 313 (CS(EC) Regs). These provide (at reg 2) that an adult’s needs meet the criteria if they arise from or are related to a physical or mental impairment or illness, and if, as a result of their needs, they are unable to achieve two or more of a list of specified outcomes (eg managing and maintaining nutrition, or maintaining personal hygiene), and if the consequence of that inability is, or is likely to be, a significant impact on their well-being.

Being unable to achieve an outcome can include being unable to achieve it without assistance or even being able to achieve it without assistance, if doing so: causes significant pain, distress or anxiety; endangers or is likely to endanger the health or safety of them or of others; or takes significantly longer than would normally be expected.

Once a local authority has determined that an adult has eligible needs, it is under a duty to meet them (Care Act 2014 s18). In order to do so, it must prepare a care and support plan (s24) that includes details of the adult’s personal budget, ie the cost to the local authority of meeting those of the adult’s needs which it is required to meet (s26). An adult can, in most cases, require the authority to make their personal budget available to them by way of direct payments (s31). A local authority is entitled to assess an adult’s financial circumstances and to require them to make a contribution towards the costs of meeting their assessed needs, to an amount potentially up to the full cost of doing so.

The Care Act 2014, for the first time, creates a fully equivalent set of duties owed by local authorities towards carers: not only to assess their needs (which was a duty already), but, in defined circumstances, to provide services to meet them (s20). Carers have their own set of eligibility criteria, at CS(EC) Regs reg 3. Since the duties to carers are contained in Care Act 2014 Pt 1, they are as much within the scope of the legal aid scheme as those owed directly to individuals with care needs.

The act also significantly expands the circumstances in which an authority may be required to provide independent advocacy support to an adult who would otherwise experience substantial difficulty in engaging with the process of assessing and meeting their care needs (s67). The involvement of an independent advocate can be vital when acting for a client who lacks capacity to instruct a lawyer directly.

In brief, the CoP’s role is to make decisions on behalf of those who the court is satisfied lack the mental capacity to do so themselves. In making such decisions, it applies the best interests principle (MCA 2005 s4). It has the power to make declarations as to an individual’s capacity (s15) and decisions as to what is in their best interests if they lack it (s16). The CoP also has jurisdiction to hear challenges to authorisations granted under the Deprivation of Liberty Safeguards (s21A), a jurisdiction which, in the aftermath of the Supreme Court’s decision in P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19, 19 March 2014, has, at times recently, threatened to overwhelm the other aspects of its role.

Not all proceedings in the CoP are within the scope of the legal aid scheme, which is set by LASPO Sch 1 Pt 1 para 5. This brings within scope generally ‘[c]ivil legal services provided in relation to matters arising under … the Mental Capacity Act 2005’, but then subjects that to several restrictions and exclusions.

Even at the legal help level the scope does not include advice or assistance with ‘the creation of lasting powers of attorney … or the making of advance decisions’ (Sch 1 Pt 1 para 5(3)), although it can include ‘services provided in relation to determinations and declarations by a court under the [MCA 2005] as to the validity, meaning, effect or applicability of[:] (a) a lasting power of attorney that has been created, or (b) an advance decision that has been made’ (Sch 1 Pt 1 para 5(4)). Broadly speaking, then, non-contentious work under the MCA 2005 is not covered, but a provider may be able to give advice and assistance (legal help) to an individual if, for instance, the Office of the Public Guardian brings an application to the CoP to challenge the validity of a lasting power of attorney under which they are appointed. The Lord Chancellor’s Guidance Under Section 4 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 stresses the need to ensure, in such cases, that the sufficient benefit test is met ‘in terms of [the client’s] financial circumstances or potential decisions concerning medical treatment or other welfare matters’.

The provision of ‘advocacy’ (ie work done under a legal aid certificate in relation to CoP cases) is further restricted by LASPO Sch 1 Pt 3, which has the effect that legal aid is only available for representation in the CoP to the extent that the proceedings concern a person’s:

right to life;

With the exceptions of certain DoLS cases (see below), legal aid in the CoP is subject to the ordinary financial eligibility tests. In addition, applications are required to meet the standard merits criteria (Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 106 reg 39), cost-benefit and prospects of success criteria, and additional criteria (reg 52) which require that:

the CoP has ordered, or is likely to order, an oral hearing; and

Those deprived of their liberty by an authorisation under the DoLS framework are entitled to non-meanstested legal aid to bring a challenge against the authorisation under MCA 2005 s21A, as is the person appointed under the authorisation to act as their relevant person’s representative (Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI No 480 reg 5(1)(g)). The entitlement to non-means-tested legal aid only lasts as long as the authorisation is in force, so the CoP should extend it for the duration of s21A proceedings rather than directly authorising the deprivation of liberty itself: Re UF [2013] EWHC 4289 (COP), 21 November 2013.

In suitably urgent cases, firms with the necessary authorisation can grant emergency legal aid for representation in the CoP using the powers delegated by the LAA.