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In R (HL) v Secretary of State for Health and Social Care [2023] EWHC 886 (Admin), the High Court has dismissed a judicial review challenge to ‘People at the Heart of Care: adult social care reform’, the Government’s White Paper which set out its priorities on social care reform. The challenge asserted the Government had unlawfully failed to bring into effect an appeal mechanism for disputes on social care provision made by local authorities under the Care Act 2014.
The case has wider relevance in particular on the duty of consultation where there is changing government policy.
Factual background
Part 1 of the Care Act 2014 places local authorities under a duty to meet the care needs of eligible individuals within their area who require such support. This includes duties in relation to assessing needs and the level of support required.
In addition, by section 72, the Secretary of State was given a power to make provision for appeals taken by local authorities in the exercise of their functions in Part 1 of the Act. In early 2016, the Government had announced a decision to introduce an appeal system from April 2020. Following this, the Government’s policy changed. The appeal system was to be considered alongside the wider social care reform package.
In December 2021, the Government published the White Paper, setting out the prioritisation of social care reform. It followed an extensive engagement exercise with over 200 organisations. The White Paper set out that an appeal system was not to be brought in immediately, but that it would be kept under ongoing review as new reforms were implemented.
In evidence, the Government explained that having taken account of the engagement exercise, of which the appeal system was not a significant feature of reform priority, the Government prioritised early spending elsewhere. Indeed, the other reforms being implemented may impact the need, design and importance of the appeal system.
The lack of immediate implementation was challenged by the Claimant. She filed her own evidence on the significant difficulties she had in obtaining the requisite level of social care support. She also filed evidence from a range of individuals on broader difficulties they had experience of in resolving disputes on local authority social care decisions.
Consultation
The Claimant argued that the failure to carry out a public consultation prior to the White Paper was unlawful. She said there had been two public consultations, one prior to the Care Act 2014 being enacted and one after, on social care reform which included questions in relation to dispute resolution.
The Court found these two consultations did not establish a practice that was so consistent as to imply unambiguously a future practice of consultation, either on social care reform generally or on dispute resolution specifically. In addition, the Court considered the “broad” consultation with representative groups was relevant and the Government was entitled to consider its future reform that way, even though it was not a full public consultation.
The Court considered that the change of government policy did not mean the entire consultation process had to be repeated – and accepted the Secretary of State’s argument that, broadly, it is not the law that where a public body adopts an unimplemented policy position following consultation then there is a duty to re-consult fully should the situation change.
Access to justice and article 8 arguments
The Claimant argued the evidence filed demonstrated that her common law right of access to justice and her procedural article 8 ECHR right had been infringed.
As to the common law right, the Court considered that whilst was a constitutional right inherent in the rule of law, the case law concerned whether there was a risk of preventing any access at all to a Court or Tribunal (such as the Supreme Court in UNISON). The Judge did not consider this was demonstrated – this was because Parliament had legislated to give a power rather than duty to create an appeal system and it had not legislated in a vacuum, and there were other remedies available including judicial review and human rights claims. In addition, the evidence from the Secretary of State as to the engagement exercise did not demonstrate a problem so acute that it raises a constitutional access to justice issue.
As to article 8 ECHR, the Court accepted this includes a procedural right, but also noted the margin of appreciate to states. This ground was also rejected – it was highlighted service users can access the courts and ombudsman, solicitors are available, and there is no hindrance to court access in the manner of UNISON and other cases.
Leon Glenister represented the Secretary of State for Health and Social Care, instructed by the Government Legal Department.
