Deprivation of liberty for the public sector

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In England and Wales, the non-consensual care and treatment of people with a mental disorder is governed largely by two parallel legal schemes—the Mental Health Act 1983 (MeHA 1983) and the Mental Capacity Act 2005 (MCA 2005). There is considerable overlap between the two Acts and the relationship can be extremely complex.

While MeHA 1983 has no age limit, MCA 2005 applies only to those aged 16 and over. The interface, therefore, only arises in relation to people aged 16 and over.

In very broad terms, MeHA 1983 provides mainly for the detention and treatment of people in hospital for mental disorder, on the basis of protection of the person and of the public. A person can be admitted and treated irrespective of their capacity to consent.

MCA 2005 applies only to those who lack the relevant decision-making capacity. It is not limited to hospital settings or treatment for mental disorder; it covers (nearly) all decisions and provides for deprivation of liberty based on the person’s best interests.

Article 5 (right to liberty and security)

Article 5 of the European

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Latest Local Government News

Supreme Court dismisses appeal upholding care order procedures (The Father v Worcestershire County Council)

On 29 January 2025, the Supreme Court delivered its judgment in The Father v Worcestershire County Council, dismissing the father's appeal against the care order placing his children in foster care. The father had sought a writ of habeas corpus, arguing that the care order was made without jurisdiction and that his children were unlawfully detained. The Court of Appeal had previously dismissed his application, stating that the correct process was to challenge the care order through the procedures outlined in the Children Act 1989 (ChA 1989) and the Family Procedure Rules, rather than through habeas corpus. The Supreme Court agreed, emphasising that the children were not detained but living in a domestic setting typical for their age. The judgment underscores the importance of following established legal procedures for challenging care orders, and highlights the limited scope of habeas corpus in such family law matters. Mark Blundell, Barrister at 1 Garden Court, comments on the judgment.

Local Government weekly highlights—30 January 2025

This week's edition of Local Government weekly highlights includes enhanced coverage on the Supreme Court judgment in The Father v Worcestershire CC, in which the father’s appeal against the care order placing his children in foster care, was dismissed, coverage of the Cabinet Office's final preparations for the Procurement Act 2023, which is set to go live on 24 February 2025 and expert analysis of the Court of Appeal judgment in Hussaini v Islington LBC. Case reports include the decisions in Sheffield CC v The Mother, on the Family Court's ruling that the child experienced significant harm due to parental neglect, meeting the threshold criteria under Section 31 of the Children Act 1989; (R (LR) v Coventry CC where the Court of Appeal quashed the local authority's support assessment for family, citing legal errors and failure to consider children's welfare; Tickle v The BBC concerning the Court of Appeal’s setting aside of an order anonymising judges in family proceedings due to lack of jurisdiction and procedural bias; R (MM) v SSHD in which the Administrative Court upheld the interim relief order for the claimant's accommodation and care support amid judicial review; IS v SSWP in which the Upper Tribunal upheld the decision on PIP entitlement, confirming no error in handling overlapping benefit claims; R (SARCP) v Stoke-on-Trent CC where the Court quashed the local authority's care home fee decision due to inadequate consultation and statutory breaches; Boffey v Dyer on the High Court’s ruling that property used solely for living accommodation remains liable for council tax; and DurhamCC v Stephenson where the High Court granted an interim injunction to prevent ongoing planning control breach in County Durham. The weekly highlights also includes further updates on Public procurement, Education and Healthcare.

Requirement for specific contracts in careworker DCoS applications was unlawful (R (Hartford Care Group) v SSHD)

Immigration analysis: The King's Bench Division (Administrative Court) ruled that the Home Office's requirement for specific contracts with guaranteed hours in care worker Defined Certificate of Sponsorship (DCoS) applications was unlawful. The court found this requirement irrational and a breach of the Tameside duty of inquiry. This decision highlights recent examples of the Home Office’s imposing additional requirements beyond published Rules and guidance in work immigration cases where a ‘genuine vacancy’ requirement is being looked at (and this aspect was not held to be unlawful in these circumstances). Also, while quashing the refusal of 70 DCoS applications, the court declined to declare that reconsidered applications should be treated under previous Immigration Rules.

OFS publishes independent review of Data Futures programme

The Office for Students (OFS) has released an independent review conducted by Price Waterhouse Coopers (PwC) of the Data Futures programme. The review identifies challenges encountered during the first year of student data collection in 2023. The review, overseen by a UK-wide steering group, provides recommendations for improving data collection across the higher education sector. Despite initial difficulties, UK funders and regulators have announced their intention to proceed with in-year student data collection, emphasising the importance of timely and accurate data for effective regulation and institutional operations. Jisc, now responsible for collecting student data and delivering the Data Futures programme, has committed to working with partners to implement improvements in higher education data collection processes.

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