SCOLAG October 2005: Administrative Law Update

Posted: February 14, 2006

Download Full Article: SCOLAG Journal Issue 336.Oct05.pdf

A review of significant welfare law and other relevant cases from Scotland and England (last appearing in July 2005) by Robert Sutherland, Advocate. This collection covers decisions issued to the end of August 2005.

Child Support
R v Secretary of State for Work and Pensions ex p.
Kehoe, [2005] 3 WLR 252
The applicant complained that there had been undue delay by the Child Support Agency after 2 October 2000 in taking steps to enforce child maintenance assessments against her ex-husband, and that she was denied a right of access to a court. At first instance it was held that the applicant had a civil right to seek maintenance for her children from their father. The exclusion of the applicant from the enforcement process imposed a procedural bar that engaged Art 6, ECHR. Enforcement of a maintenance assessment was an integral part of the Art 6 right to a maintenance assessment. Judicial review by itself might well not be an adequate remedy where the CSA decided not to enforce a maintenance assessment, or failed to timeously or effectively enforce an assessment.
The court had jurisdiction to entertain an action for damages under s7, Human Rights Act 1998. A combination of judicial review and the right to bring an action under s7, 1998 Act meant that the 1991 Act scheme was ECHR compliant (see 2003 SCOLAG 129). By a majority the Court of Appeal held that the applicant had no right under the 1991 Act that she could exercise against the father. The legal framework was entirely statutory and the assessment, collection and enforcement of maintenance orders were all in the hands of the CSA or the Secretary of State. The applicant did not have an arguable civil right under domestic law which entitled her to a determination under Art 6, ECHR. Had Art 6 rights been engaged the failure of the Secretary of State to enforce payment was subject to judicial review, but this was an inadequate remedy as the applicant could have no effect on what did happen. But the 1991 Act scheme was proportionate as it satisfied a
reasonable relationship between legitimate objectives and the means used to achieve them, so the 1991 Act was Art 6 compliant over all (see 2004 SCOLAG 125).
Held (by a majority) The 1991 Act deliberately did not confer any rights to enforce a maintenance assessment against an absent parent and that was a matter exclusively for the Secretary of State. Art 6 was not engaged. As a result the CSA could not be said to be acting unlawfully. There was no remedy available to the applicant under the 1991 Act.

Community Care
R v Southend Borough Council ex p. J , QBD
Administrative Court, Newman J, 5 August 2005
The applicants were all long term users of a local authority's day centres and had learning difficulties of varying degrees. On becoming a unitary authority in 1998 the local authority had assumed responsibility for providing community care services to those habitually resident in its catchment area. The local authority took over responsibility for certain day centres attended by the applicants who otherwise habitually resided in the catchment area of the county authority formerly running those centres, and that county authority remained statutorily responsibility for the care of the applicants. The county authority provided placements for the applicants in these care centres so that the applicants remained entitled to attend the day centres they had previously been using. In
2003 the local authority decided, in response to a Government White Paper on modernising care services, to close one of the day centres and to provide services at the remaining one only for those habitually resident within their catchment area. Consultations took place between the local authority and the county authority about putting in place community and social opportunities for those affected by the changes. The applicants challenged the local authority's decision.
Held The relevant care duty and statutory responsibility owed to the applicants fell on the county authority and not the burgh council. The mandatory duty to provide assessments of the applicants lay with the county authority and it had not discharged that responsibility by placing the applicants with the burgh council. The burgh council was not under any statutory duty to the applicants and so it had not acted unlawfully in failing to carry out any assessment of the applicants' care needs. On an assumption that there was an interference with the private lives of the applicants through their exclusion from the centres, any interference was a limited one. Steps had been taken to ensure that the applicants' relations were maintained outside the centres. The whole position had to be considered, including the opportunities presented by the modernising scheme, which was intended to reflect the intentions of the White Paper. Taking into account proportionality and balancing the effects of changes on all concerned there was no breach of Art 8, ECHR.