…and why that matters
This is an issue that comes up a lot, and I have covered it in any number of training sessions I have led with practitioners and lawyers. So I am hoping that this will be useful to you too.
Let’s start with what I mean by these terms.
By public law decisions, I mean decisions that are for the local authority (or health authority/CCG) to make under the legislation that sets out their powers. Most commonly in my practice, I am referring to Care Act decision-making such as assessments and support plans.
By best interests decisions, I mean decisions made on behalf of the person when they have been assessed as lacking capacity to make the decision themselves. These are decisions that P would make themselves if they did have capacity such as which available care home they would like to live in.
So let’s take the example of a change in placement, and agreeing a support plan. What the person’s needs are, is a public law decision. It is governed by the Care Act and accompanying guidance and regulations. It would never be an individual’s decision what their needs are. Although the individual’s views should be taken into account and we should start from a position of assuming they know their own needs best, the decision is ultimately the local authority’s to make.
Generally that isn’t contentious.
Then there is the support plan, and agreeing the personal budget. And this is where it gets messy. But essentially, deciding what options are available, including what will and will not be funded is a public law decision. It is never for the individual to make those decisions. The individual can express a choice for particular types of care or providers or care homes, and choice of accommodation applies when residential options are being explored BUT the individual doesn’t decide what options are available and what the personal budget will be. The local authority does.
Once that decision has been made, and the options identified, then it is for the individual to decide which option they prefer. If the individual lacks capacity to make that decision then this becomes a best interests decision.
Now often there is a hybrid process and it rarely happens precisely in a neat order. But at its core there are at least 2 decisions when support planning: a public law decision about what options are available, and a best interests decision as to which of those options to choose (assuming the person lacks capacity to decide for themselves).
And this might sound like a lawyer being pedantic. But actually it is very important to know what type of decision is being made because this affects a) what needs to be taken into account when making the decision and b) what can be done if someone doesn’t agree with the decision made.
Let’s start with what needs to be taken into account. The factors to be taken into account during support planning and calculation of the personal budget are set out in the Care Act 2014 and it’s accompanying regulations. These are supplemented by the Care and Support Statutory Guidance.
Conversely, the factors to be taken into account for a best interests decision are set out in section 4 Mental Capacity Act 2005.
There is some overlap, but the two are not identical. And so if you apply the wrong factors, then there is a good chance that the decision will be unlawful.
As to the route of challenge, these differ significantly. If someone disagrees with a best interests decision, they can make an application to the Court of Protection asking the court to make the decision. When it does so, the court makes an entirely new best interests decision, going through the same process that that the original decision-maker did and substituting its own decision. It can do so without necessarily having to find fault with the original decision.
But public law decisions are outside the Court of Protection’s jurisdiction. That has been confirmed by the court in cases like Re N (Court of Protection: Jurisdiction)  EWHC 3859 (COP). Instead, a person who does not agree with these decisions can make a complaint through the statutory complaints procedure, if still dissatisfied they can make a complaint to the Local Government and Social Care Ombudsman. The route of court challenge is very likely to be through judicial review.
This differs significantly from the Court of Protection. Firstly, there is a 3 month timeframe to bring this type of claim, which courts do not usually extend without good reason. That means there is 3 months from the date of the decision to take action. Which isn’t long.
It’s a costly process too, designed on the assumption that solicitors and barristers will be instructed by all parties.
The most important thing to remember about this process though is that the judge has to find a fault in the way the decision was reached in order for the claim to succeed. And even if they do, they set aside the original decision and require the authority to make the decision again. Properly this time.
From a local authority perspective, public law decisions are thus much less likely to be challenged, because the Court of Protection is much more accessible. But if you confuse the two, you and your lawyers are likely to get a very hard time.