The problems and frustrations that arise when the law is called in to help those who cannot help themselves have seldom been better illustrated than in a recent High Court action.
And one message comes from the winning legal team – lawyers who fight for the needs of the ill and disabled must be tough and "keep on the backs of the social services".
The case centred on a critically disabled man and his mother's fight to get him more help. Her continuing struggle has been long and drawn out, but through the efforts of London solicitor Richard Stein, of Leigh Day & Co, who masterminded the litigation alongside barrister Jenni Richards, 24-year-old Ian Parker and others in a similar plight may get a better deal from local authorities in the future.
Parker suffers from viral brain damage and epilepsy and it was said he could do nothing except sit in a wheelchair at the British Home and Hospital for Incurables, in Streatham, south London, and listen to the radio or watch television.
He had lived with his mother in Berkshire until moved to the hospital and she sought an assessment of his needs under the National Health Services and Community Care Act 1990. She discovered Berkshire County Council believed he was no longer its responsibility.
The council took the view it was under no duty to make an assessment because Parker was outside its jurisdiction when living in the London hospital.
In the High Court, Richards, as counsel, told the judge that Parker had been put into "limbo" as a result of his move, with no local authority assuming responsibility for him.
The council countered that under the terms of the 1990 Act the authority's duty to assess the needs of someone such as Parker only arose if the person was usually resident in its area.
Stein and Richards disagreed and won the day. Justice Law, in a ruling now being studied by the Royal Association for Disability and Rehabilitation, said the needs of those such as Parker can be assessed by any authority and there is no need for residential qualification.
The legal team said the case revealed a lacuna over the question of "ordinary residents" and that Justice Laws' decision has clarified the position for people in a position similar to that of Parker's mother. They said it is an area of law many lawyers are unfamiliar with, a fact made worse because it is a changing area of law.
But Stein said litigation was not the only solution. "If a lawyer finds him or herself with a client suffering from disability or illness whose needs do not appear to be met, their first step should be to go to social services and ask for an assessment," he said. "In the light of this latest ruling they cannot refuse to assess unless the person in question does not actually have needs."
Stein also warned a lawyer with such a case must "keep on the backs" of the social services. Social services are under pressure, he said, and must be pressured to prevent cases being delayed.