Britain Replaced Families With Permanent Government

Just after Christmas 2009, a man in Uxbridge asked his council for a few days of help. Mark Neary had been caring for his son Steven, who is autistic and has a severe learning disability. He was exhausted and unwell. Steven went into a support unit for six days. He was due home on 5 January 2010. He came home on 23 December, nearly a year later, kept there against his father's wishes throughout.

Hillingdon Council granted itself the first authorisation to detain him in April. It appointed an independent advocate for him in October. It went to court, having by then been in dispute with the father for months, at the end of October.

When a judge finally looked at it, Hillingdon lost on everything.

Judge Peter Jackson held the council had unlawfully deprived Steven of his liberty, had breached his right to family life, and had denied him a speedy review by a court. The council's defence included the suggestion Mr Neary could always have gone to court himself, and had been told so. The judgment dealt with it in two sentences worth committing to memory: local authorities have the advantage over individuals in experience and depth of pocket, and the fact an individual does not bring a matter to court does not relieve the authority of the obligation to act, it redoubles it.

The case is famous because Mark Neary was unusually stubborn, unusually articulate, and eventually got a published judgment. What ought to unsettle people is how ordinary the mechanics were.

No official broke the law on purpose. Assessments were completed, forms were signed, authorisations were granted. A family was overruled by a body which had assessed the need, chosen the placement, funded the placement, appointed the assessors, and then declined to refer itself to a judge for ten months.

That arrangement is not an aberration in adult social care. It is now the standard way Britain settles questions about children, money, illness, capacity, schooling, and housing.

A relative may attend. A relative may be consulted. A relative may not decide.

Families Kept The Work And Lost The Say

The clearest way to see what happened is to ask who, in each area, holds legal authority now, and who held it before.

The middle column was not a golden age. It contained workhouses, unrecorded beatings, asylums nobody inspected, and old people robbed by relatives with no supervision at all. Everything in the right column was built for a real and often terrible reason.

Notice what the right column does not contain.

Relatives appear everywhere as referrers, informants, consultees, and unpaid carers.

They appear nowhere as holders of authority whose judgement the state must overcome before substituting its own.

Under the Mental Capacity Act, anyone deciding for an incapacitated adult must take into account the views of people engaged in caring for him. Taking into account is the whole of it. A daughter who has washed, fed, and medicated her father for six years has precisely the standing of a box in a form.

Nine million people have worked out the implication. The Office of the Public Guardian was supervising 61,038 deputyship orders at the end of March 2025, with 9,340,910 lasting and enduring powers of attorney on the register.

That is nine million people paying a fee to name their own decision-maker in advance, rather than leave the question open for strangers to answer later.

It is the closest thing to a national referendum on this system Britain has held, and the result was emphatic.

600,000 Families In A Single Year

The volume is the part which surprises people who have never been inside it. In the year up to March 2025, councils in England received almost 633,000 referrals to children's social care and completed almost 649,000 assessments. There were 230,590 enquiries under section 47, the provision reserved for suspicion of significant harm, and the highest figure ever recorded. Those enquiries produced 72,100 initial child protection conferences and 49,420 children on protection plans.

Follow the arithmetic.

1. Section 47 enquiries rose by nearly 15 per cent in five years.
2. Conferences fell.
3. Plans fell to their lowest number since 2014.
4. The proportion of enquiries reaching a conference is now 31 per cent, down from 47 per cent in 2013.

Britain is investigating far more families for suspected serious harm and finding it in a steadily smaller share of them.

Which tells you the threshold for investigating has moved rather than the incidence of harm.

Every one of those investigations is a family answering questions about its own house. The great majority end with nothing recorded and nothing offered. There is no compensation, no apology, and no acknowledgement, because on the system's own terms nothing went wrong.

Care homes and hospitals submitted 364,900 applications to deprive people of their liberty in 2024 to 2025, with 118,850 cases uncompleted and an average of 126 days against a statutory limit of 21. The safeguard exists as a queue.

People are confined first and assessed later, or confined and never assessed, and the paperwork catches up when it can.

One Body Investigates And Reviews Itself

Strip away the vocabulary and a single design keeps appearing.

• A council assesses a person's needs, decides which are eligible, proposes a placement, funds it, assesses capacity, gathers the evidence, applies to the court, argues for its own plan, and monitors the result.
• A department calculates a maintenance liability, demands it, instructs an employer to take it, and reconsiders its own figure when challenged.
• A local authority writes an education plan, refuses the therapy in it, and appears at tribunal to defend the refusal.

None of this requires anyone to behave badly. It requires only that people behave normally.

Which is to say they tend to agree with themselves.

Britain did not invent this quietly and it was warned early. In 1929 the Lord Chief Justice published an attack on the practice of handing judicial functions to anonymous officials who gave no reasons, and objected in particular to a rating statute allowing a minister to remove difficulties by order, including by modifying the Act itself.

The government appointed a committee (of course it did), which reported in 1932 and did not share his alarm.

The Franks Committee looked again in 1957 and concluded tribunals were adjudicating bodies rather than administrative ones, and should be marked by openness, fairness, and impartiality.

Andrew Leggatt looked again in 2001, and the explanatory notes to the resulting Tribunals, Courts and Enforcement Act 2007 put the problem with a civil servant's beautiful flatness: tribunals were administered by government departments, and those departments were sometimes responsible for the decisions appealable to the tribunal.

Each inquiry produced a better machine.

Not one produced a question about whether the machine should hold the power in the first place.

Unlawful To Disobey Rules Which Aren't Law

Ask where the actual rule comes from and the answer is stranger than most people expect.\ Above the officer sits a code of practice, or statutory guidance, or an operational manual. These are not Acts. They are usually not statutory instruments.

They are written inside departments, revised without ceremony, and they determine what a capacity assessor concludes, what a housing officer records, and how a ward is run.

Their legal status was settled in R (Munjaz) v Mersey Care NHS Trust, and the formula is a small masterpiece. The Code of Practice under section 118 does not bind as a statute binds. It is guidance, not instruction. It is nonetheless much more than advice an addressee may take or leave, and may be departed from only for cogent reasons.

So the document is not law, and disobeying it is... unlawful.

The Delegated Powers Committee has noticed where this leads, complaining about powers permitting ministers to issue mandatory guidance and observing such guidance is in effect legislation Parliament has never seen.

During the pandemic, the definition of a critical worker, which governed whose children could attend school, was left to guidance rather than written into the regulations.

Below the codes, and equally invisible, sit the rules with criminal consequences. Research at Glasgow found 92 per cent of the criminal offences in a 2014 sample were created by statutory instrument rather than by Act, and the same work shows the habit is old rather than modern, with 82 per cent in a 1951 to 1952 sample and three quarters of those carrying a maximum penalty of imprisonment.

A Court Which Cannot Ask Whether The Decision Was Right

The standard reassurance is the courts remain available. They are, but the reassurance misdescribes what they can do.

Lord Brightman fixed the boundary in Chief Constable of the North Wales Police v Evans: judicial review is concerned with the technical decision-making process rather than the decision itself, and is a review of the manner in which a decision was made rather than an appeal against it.

A mother who can prove the assessor asked the wrong question wins. A mother who says the assessor asked the right question and reached an answer which is plainly wrong about her own son has, in most schemes, nowhere at all to go.

There were 1,300 judicial review applications received in a quarter in which the county courts received 527,000 claims.

In the immigration jurisdiction, of 960 applications determined on paper in early 2026, 15 per cent were allowed to proceed to a substantive hearing.

The Judicial Review and Courts Act 2022 then gave courts power to suspend quashing orders and to make them prospective only, so a decision may remain valid after being declared unlawful, and removed by ouster clause the ability to challenge an Upper Tribunal refusal of permission to appeal.

Getting to the door at all now requires money most families do not have.

The number of organisations holding civil legal aid contracts fell from around 3,200 to around 1,600 between 2009 and 2019, and the Ministry of Justice's own review recorded a 39 per cent fall in legal help matter starts after the 2012 reforms.

The council has a legal department. The family has a friend who is good with paperwork.

Appeals Which Outlast The Injury

Where a proper appeal does exist, it exists in the tribunals, and the tribunals are drowning. In 2025 to 2026 they took in 461,000 cases, disposed of 319,000, and finished the year with 860,000 open.

• Special educational needs appeals reached 29,000, the highest ever recorded.
• Social security appeals reached 146,000, with a mean of 35 weeks from lodging to decision.
• Immigration appeals took 61 weeks.

Of social security cases cleared at a hearing, 59 per cent ended with the original decision revised in the claimant's favour, rising to 67 per cent for personal independence payment.

A department losing two thirds of its contested decisions is not making difficult judgement calls at the margin. It is getting them wrong at industrial scale, and the correction arrives eight months later, to the minority who appealed at all.

Before reaching the tribunal, the claimant must first ask the department to think again. This stage is called mandatory reconsideration, which is a phrase written by someone with a sense of humour.

For a child, eleven months is a school year.

For a woman of eighty-eight, 126 days waiting for a deprivation of liberty assessment may be a material fraction of what is left.

Nobody Is Actually Answerable

Above all this sits a layer of permanent bodies making rules, investigating breaches, determining outcomes, and imposing penalties. Nobody can say how many there are. The National Audit Office counts around 90. The Institute for Government counts 116.

Since the 2019 general election, only 35 of those 116 regulators attended a select committee hearing examining their work as a whole, and another 35 were not called before Parliament in any capacity.

Social Work England, which regulates the profession conducting the assessments described above, was among the bodies never called. The Health and Social Care Committee, responsible for more regulators than any other, held a general scrutiny session with none of them.

Running alongside is a parallel apparatus absorbing the disputes which would once have been litigated.

The Financial Ombudsman Service received 214,600 complaints in 2025 to 2026. The Housing Ombudsman made 7,082 determinations in 2024 to 2025, a rise of 30 per cent.

These schemes are free, informal, and frequently effective.

They also decide by their own standards of fairness rather than by law, create no precedent anyone can rely on, and answer to nobody a voter can remove.

• The minister answers for policy.
• The department answers for delivery.
• The agency answers for operations.
• The contractor answers for performance.
• The regulator answers for standards.
• The tribunal answers for the individual case.
• The ombudsman answers for the handling of the complaint about the individual case.

Each answers for a fragment, and the fragments never reassemble into a person who can be sacked.

Other Countries Protected The Family

Britain is not unusual in building institutions of this kind. Every developed country did. The difference lies in what was protected while they were being built.

Germany, drafting a constitution in the wreckage of a state which had abolished judicial protection outright, wrote the answer into Article 19(4) of the Basic Law: should any person's rights be violated by public authority, he may have recourse to the courts.

The guarantee is delivered through a separate hierarchy of administrative courts deciding questions of law and fact afresh rather than reviewing the tidiness of an official's reasoning.

Australia, after a royal commission into an automated debt-recovery scheme which hounded people for money they did not owe, replaced its federal tribunal in October 2024 with the Administrative Review Tribunal, charged with reaching the correct or preferable decision across more than four hundred statutes, on any evidence including evidence never put to the department.

Scotland kept the family in the frame. Under the Adults with Incapacity (Scotland) Act 2000 a welfare guardian holds durable authority and is usually a relative, friend, or carer, with the council supervising. The state watches the family.

In England and Wales the state holds the authority and consults the family.

Britain has no constitutional guarantee of access to a court, no general right to have an administrative decision reviewed on its merits, and no general administrative code.

Which protections a citizen gets depends entirely on which Bill happened to be passing when the power was created.

What Is Still Left After State Meddling

Every part of this began as a remedy for real cruelty. Fathers did vanish. Children were beaten in houses nobody visited. Incapable adults were stripped of their savings. The old courts were slow, expensive, and shut to the poor. Anybody arguing for the restoration of that world is not arguing seriously.

The accumulation, though, was never put to anyone as a single question, because it never arrived as one. It arrived as ninety separate improvements, each defensible, each announced in the vocabulary of care.

The family now retains sovereignty over a short list.

What a child is called. What the household eats and believes. Who is welcome at the table. Almost everything with legal consequences attached has been moved somewhere else.

Should authority over an adult who cannot decide pass first to their family, with the state required to prove displacement is necessary, as it must prove significant harm before removing a child?

At present a council needs no finding of unfitness against a relative. It needs only a better plan, judged by the people who wrote it.

Should a public body be permitted to assess, fund, commission, decide, and litigate the same question, or should the law separate the assessor from the applicant, as it separates the prosecutor from the bench in every magistrates' court in the country?

And where a statute takes a dispute out of the ordinary courts, should the Bill be required to say so on its face and justify the removal, rather than achieving it through drafting nobody reads?

Mark Neary got his son back because he refused to accept a series of entirely lawful decisions, and because a judge eventually agreed with him.

Almost nobody has the stamina, and almost nobody gets the judge.

The rest attend the meeting, and are consulted, and go home.