Steve Broach

Steve is instructed on a wide range public law challenges and routinely advises and represents claimants in judicial review proceedings. He has a particular interest in legal challenges to cuts to public services and was junior counsel for the Claimants in the successful challenge to Birmingham’s decision to move its eligibility threshold for adult social care to ‘critical only’; R (W, M and others)  v Birmingham CC [2011] EWHC 1147 (Admin). Steve is currently instructed on a number of other challenges to cuts to important services for disabled children and disabled adults.

Steve's notable public law cases include:

Supreme Court

• R (KM) v Cambridgshire CC [2012] UKSC 23 – junior counsel (led by Ian Wise QC) in leading case on application of ‘Resource Allocation Schemes’ in which seven-member Supreme Court clarified (i) the absolute nature of the duty to meet eligible community care needs, (ii) the need for sufficient reasons to be given to justify resource allocation decisions and (iii) the requirement of intense scrutiny by the Court in important  community care decisions.
• R (McDonald) v Kensington and Chelsea [2011] UKSC 33 – junior counsel (led by Stephen Cragg) in appeal concerning whether a decision to terminate night-time carer support for a disabled woman by reliance on the provision of incontinence pads was compatible with the authority’s obligations in domestic community care and disability discrimination law and under Article 8 ECHR.
• A v Essex [2010] UKSC 33 – junior counsel (led by Ian Wise QC) for the National Autistic Society as Intervener – case concerned the nature and scope of the right to education under Article 2 of Protocol 1 ECHR in relation to disabled children.

Court of Appeal

• R (O) v Hammersmith and Fulham LBC [2011] EWCA Civ 925 – junior counsel (led by Ian Wise QC) in appeal in relation to placement of child with severe autism. Both appeal and cross-appeal dismissed.
• Haringey IAP v M [2010] EWCA Civ 1103 – junior counsel (led by Ian Wise QC) in an appeal concerning the requirements of the School Admissions Codes in relation to vulnerable children. Acted alone in the High Court before Lord Carlile of Berriew QC ([2009] EWHC 2427 (Admin)).
• R (O) v Barking and Dagenham LBC [2010] EWCA Civ 1101 – junior counsel (led by Ian Wise QC) for The Children’s Society as Intervener – appeal in relation to the provision of accommodation by local authorities to former relevant children and the interplay with the asylum support provisions.

High Court

• R (B) v Nursing and Midwifery Council [2012] EWHC 1264 (Admin) – counsel (acting alone) in successful challenge to decision by NMC to re-open finding of no case to answer. Decision held to have been taken ultra vires and in breach of both substantive and procedural legitimate expectations.
• R (Waxman) v Crown Prosecution Service [2012] EWHC 133 (Admin) – junior counsel (led by Ian Wise QC) in successful challenge to decision of CPS to discontinue prosecution of a stalker. Human Rights Act damages obtained.
• R (CRAE) v Secretary of State for Justice [2012] EWHC 8 (Admin) – junior counsel (with Alex Gask, led by Richard Hermer QC) in challenge to Secretary of State’s refusal to provide information to former trainees who may have been subject to unlawful restraint in Secure Training Centres as to their rights to seek redress. Application refused but leave to appeal to Court of Appeal now granted.
• R (VC and others) v Newcastle CC [2011] EWHC 2673 (Admin) – counsel (acting alone) in Divisional Court case establishing that the Children Act 1989 takes precedence over ‘hard case’ support under ‘section 4’ for families with no immigration status.
• R (W) v Birmingham CC [2011] EWHC 1147 (Admin) – junior counsel (led by Ian Wise QC) in successful challenge to Birmingham’s decision to move to ‘critical only’ eligibility for adult social care. Birmingham held to have breached the disability equality duty and to have failed to have conducted a lawful consultation.
• R (RCN and others) v Secretary of State for Home Department [2010] EWHC 2761 - junior counsel (led by Ian Wise QC) in case in which the High Court declared that provisions under the Safeguarding Vulnerable Groups Acts 2006 to place individuals on a list of people prohibited from working with vulnerable adults and children without giving them an opportunity to make representations were contrary to articles 6 and 8 ECHR. Declaration of Incompatibility made by Wyn Williams J.

Steve is instructed regularly in Court of Protection cases, using the knowledge of the Mental Capacity Act he gained prior to coming to the bar as the Co-Chair of the Making Decisions Alliance, the voluntary sector coalition campaign for the Act. Steve’s Court of Protection instructions include:

• A complex serious medical treatment case involving a woman with severe anorexia where both capacity and best interests questions were in dispute;
• A case where Steve acts for the son of P, an elderly woman who was taken (it is alleged without lawful authority) from the family home and is presently being deprived of her liberty in a care home; and
• A factually complex case where P’s son is being prevented from having unrestricted contact with his mother as a result of unsubstantiated abuse allegations.

Steve also advises and represents families of disabled children in best interest proceedings, using the inherent jurisdiction of the Family Division of the High Court to determine issues in the child’s best interests.

Steve’s professional discipline and regulatory practice focuses on public law challenges to regulatory decision-making. For example in R (B) v NMC [2012] EWHC 1264 (Admin) Steve established that the NMC has no power to reopen investigations where no case to answer has been found in the absence of fresh evidence. The NMC’s decision was also held to breach Nurse B’s substantive and procedural legitimate expectations.

Steve has succeeded in numerous challenges to police disclosure decisions brought on behalf of professional clients. His three most recent cases in this area are R (J) v Chief Constable of Devon and Cornwall [2012] EWHC 2996 (Admin) and R (A) v Chief Constable of Kent [2013] EWHC 424 (Admin), both involving nurses, and R (L) v Chief Constable of Cumbria [2013] EWHC 869 (Admin), a case involving a teacher. In all three cases the High Court allowed the application for judicial review on proportionality grounds and ordered Human Rights Act damages to be paid (subject to an appeal in A).

Having succeeded (with Ian Wise QC) in establishing that the ‘auto barring’ provisions of the Safeguarding Vulnerable Groups Act 2006 breached Articles 6 and 8 ECHR (R (RCN and others) v Secretary of State for Home Department and ISA) [2010] EWHC 2761) Steve also acted in the two leading cases involving proportionality challenges to barring decisions by the Independent Safeguarding Authority (now the Disclosure and Barring Service). Steve acted for the Royal College of Nursing (with Ian Wise QC) in its intervention in the Court of Appeal in ISA v SB (RCN intervening) [2012] EWCA Civ 977. Steve acted for the appellant (alone in the Upper Tribunal, with Ian Wise QC in the Court of Appeal) in DBS v Harvey [2013] EWCA Civ 180. Mr Harvey, a teacher who assaulted a pupil while unwell and who challenged his inclusion on the adults’ barred list, succeeded in the Upper Tribunal but lost in the Court of Appeal; his application for permission to appeal to the Supreme Court is outstanding.

Steve appears frequently for parents and children in education appeals at the First Tier Tribunal (Special Educational Needs and Disability), the Upper Tribunal and at exclusions and admissions Independent Appeal Panels (IAPs). Steve’s successful Tribunal and IAP cases have included:

• Overturning a decision of the First-Tier Tribunal in the Upper Tribunal in relation to whether a form of intervention for children with autism and their families is capable of being ‘educational provision’; ZT v Oldham Council (SEN), HS/587/2010;
• Overturning the permanent exclusion of a six year old boy with special educational needs on the basis of a failure to have regard to the relevant statutory guidance;
• Successfully challenging the policy of a unitary authority in the South of England that was unlawfully ceasing to maintain Statements of SEN at 16
• Achieving the admission of a girl from a family who had experienced serious domestic abuse into her mother’s chosen school; and
• Obtaining a specialist sixth form placement for a severely disabled young man with autism whom the local authority considered could be placed in a local mainstream college, and also obtaining costs against the authority.

Steve has advised and represented in numerous disability discrimination claims, particularly in relation to education, and succeeded in establishing discrimination by a school in South-East England against a 10 year old girl with Asperger syndrome and specific learning difficulties. Steve also established in First Tier Tribunal proceedings that the rules applicable to Tier 4 students discriminated against disabled young people contrary to the Equality Act 2010 and Article 14 ECHR.

As well as acting for individual claimants, Steve regularly advises and represents leading charities and NGOs. This work includes speaking on legal issues at local and national events and seminars and case work. As well as interventions for the National Autistic Society (A v Essex) and The Children’s Society (O v Barking and Dagenham) outlined above, Steve has:

• Advised the Royal College of Nursing on draft guidance in relation to Enhanced Criminal Records Certificates and indicative sanctions for NMC proceedings, leading to significant amendments to both guidance documents
• Acted for CRAE (the Children’s Rights Alliance for England), led by Richard Hermer QC, in successful Information Tribunal proceedings which led to the disclosure of the manual governing the use of control and restraint in Secure Training Centres;
• Advised Save the Children (with Paul Bowen and Alex Gask) on the enforceability of the duties in the Child Poverty Act 2009;
• Advised the National Autistic Society (with Ian Wise QC) on the lawfulness of the draft guidance on services for adults with autism to be issued under the Autism Act 2009, leading to significant amendments to the final guidance;
• Advised Contact a Family and The Children’s Trust in relation to their ‘DLA Takeaway’ campaign, which seeks to preserve Disability Living Allowance for children in hospital. Permission to appeal to the Upper Tribunal has been granted in a case on which Steve is instructed which will test whether the relevant regulations are contrary to Article 14 ECHR;
• Assisted the Council for Disabled Children (CDC) to intervene in R (JL) v Islington LBC [2009] EWHC 458 (Admin), a successful challenge brought by Paul Bowen to Islington’s eligibility criteria for short break services. CDC’s intervention was approved by the judge as evidence that this case highlighted a wider problem affecting many families with disabled children.

Steve is Chair of AbleChild Africa, a UK-based NGO supporting NGOs working for disabled children and their families in Africa. Steve was also previously a trustee of the Campaign to End Child Poverty.

Steve chairs the School Exclusions Project with the BPP Pro Bono Unit through which law students provide free representation to families at school exclusion Independent Appeal Panels.

Steve is an advisor to Ambitious About Autism, the charity for children with autism which runs TreeHouse school. Steve continues to advise a wide range of charities and NGOs, in particular the Council for Disabled Children and the National Autistic Society.

Steve has an extensive immigration and asylum support practice. Steve has particular expertise on the relationship between the community care scheme for children and adults and the asylum support provisions (see R (VC) v Newcastle, above) and is regularly instructed on judicial review challenges to decisions of local authorities to terminate accommodation and support being provided to failed asylum seekers. An example of this is R (J and others) v Hackney LBC [2010] EWHC 3021 (Admin), where Steve obtained both interim relief and costs once the claim had settled. In R (IN and WH) v Salford CC, CO/12626/2010, Steve obtained interim relief for two destitute failed asylum seekers, with the authority conceding that it was required to re-assess the claimants’ needs. Steve also regularly volunteers at the Asylum Support Tribunal for ASAP (Asylum Support Appeals Project).