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||Neutral Citation Number:  EWCA Civ 1308
||Case No: C1/2017/1043/QBACF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE MORRIS
||Royal Courts of Justice
Strand, London, WC2A 2LL
||1 September 2017
B e f o r e :
LORD JUSTICE McFARLANE
LORD JUSTICE BEAN
LADY JUSTICE THIRLWALL
|| THE QUEEN
(on the application of)
||- and -
||OXFORDSHIRE COUNTY COUNCIL
||- and -
||(1) THE EQUALITY AND HUMAN RIGHTS COMMISSION
||(2) INCLUSION LONDON
Jamie Burton (instructed by Irwin Mitchell LLP) for the Claimant
Jonathan Auburn and Zoe Gannon (instructed by Angela Mills, Principal Solicitor, Oxfordshire County Council) for the Defendant
Victoria Butler-Cole (instructed by The Equality and Human Rights Commission) for the First Intervener (written submissions only)
David Wolfe QC (instructed by Louise Whitfield, Deighton Pierce Glynn) for the Second Intervener
Hearing date: 17 August 2017
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Bean
- Luke Davey ("the Claimant") seeks judicial review of the decision of Oxfordshire County Council ("the Defendant") made in or around October 2015 to reduce the Claimant's personal budget and to revise his care and support plan pursuant to the Care Act 2014 ("the Act"). The effect of these decisions was to set the personal budget for the Claimant's care at £950 per week with effect from 1 May 2016, a substantial reduction from his previous budget of £1651 per week. Morris J, in a judgment given on 27 February 2017  EWHC 354 (Admin), dismissed the claim. Mr Davey appeals to this court. We were told that this is the first case in which the Act has been considered in this court.
- The Claimant, now aged 41, is, and has been since shortly after birth, severely disabled with significant needs for care and support. He has quadriplegic cerebral palsy, contractures of hips and knees, hip dislocation, very little trunk control, stretched bowel and hypersensitivity to touch. He is not able to bear weight or mobilise and is therefore dependent on a wheelchair. He has severe visual impairment and is registered blind, although he has some, low vision, sight. He requires assistance with all of his intimate personal care needs (including personal hygiene and toileting), all domiciliary tasks and the activities of daily living, including accessing the community. In the past he has been recorded as having depression, persistent low mood and anxiety.
- The Claimant receives strong support from his family, led by his mother Jasmine Davey, who is now aged 75. His sister Rachel, his sister in law, Sue Davey and his father, Tony Davey are also active as carers. Despite his substantial disabilities, the Claimant leads an active and engaged life. This is a tribute not only to his own determination but to the tremendous efforts of his mother and his devoted team of carers.
- The Defendant is the local authority with responsibility for the area where the Claimant resides. Key personnel in its Adult Social Care Team are Nicki Lovelock, a social worker with 26 years' experience, with particular expertise in disability and adult mental health; Julie Collins, an occupational therapist; and Jill Last, the OT Practice Supervisor and Ms Collins' line manager.
- In 1999, at the age of 21, the Claimant moved out of his parents' house and into a purpose built two-bedroom adapted bungalow in Burcot, Abingdon, Oxfordshire in a complex designed for disabled people. Ever since then, he has had largely the same team of seven carers: these include his two main carers - Sue Davey and Cheryl Hennessey, (who have been paid at a higher rate than others). Apart from his mother, the carers, including his family members, are all paid.
Care and funding arrangements in the past
- For many years, the Claimant has received adult social care support, under relevant legislation, based on a needs assessment and a care plan. Until June 2015 this care was funded in a total amount of £1651 per week, provided in part by the Defendant, in part by the Independent Living Fund ("ILF") in an amount of about £730, in part by the NHS and by a small means tested contribution from the Claimant.
- By January 2015 it had been announced that the ILF was to close down. It did so in June 2015, since then the funding of the Claimant's care and support has been provided by the Defendant Council with a small means tested contribution from the Claimant. The Council first indicated that it would reduce funding to £903 per week, but revised this and instead (after a short period of tapering) reduced the sum paid to £950 per week with effect from 1 May 2016. The Claimant's position is that his needs cannot be met by such a reduced amount.
- By July 2015 the Claimant was aware of the Defendant's proposed revised personal budget. Following objections from the Claimant, in September and October 2015 the Defendant carried out further updated assessments of needs and produced a revised care plan and personal budget, essentially confirming the weekly sum of £950. After further pre-action correspondence, proceedings were issued in May 2016.
The Claimant's case in outline
- The Claimant contends that the reduction to £950 per week is in breach of the Defendant's obligations under the Care Act 2014 and/or Wednesbury unreasonable. Two underlying reasons were given for the Defendant's decision to reduce the personal budget. First, the Claimant could in the Council's view spend more time alone without the benefit of a personal assistant (PA) being present. Secondly, the Claimant could and should reduce the amount which he pays to his PAs. The Claimant says that these changes pose two risks to his wellbeing: first, anxiety arising from having to spend unwanted time alone and, secondly, the risk of losing his established care team of 18 years. These concerns are recorded throughout the history of the assessments. The Claimant and his family believe that the Defendant first set a budget figure and then assessed the Claimant's needs so as to fit that budget. The Defendant denies this.
- By the time of the hearing before the judge the Claimant had agreed to spend time alone for four hours a day (2x2 hours), and accepted certain reductions in the terms and conditions of the PAs. On this basis, the Claimant has been prepared to accept a reduction to £1224.25 per week.
ILF Support Plan: 2014
- An Independent Living Fund Support Plan dated around 28 January 2014 set out the Claimant's current care and support needs and current costs and what would happen once the ILF closed. It expressly disavowed setting out the support from July 2015, as that would be the local authority's responsibility. It recorded that the Claimant had a history of depression and anxiety; that the potential closure of the ILF was a particular concern for him; and that 24 hour support was needed. In the "outcomes" section, what was important for the Claimant, was stated to be: independence, ability to make his own decisions and basic daily functions; social interaction with his different carers. The plan emphasised the importance of his existing team of carers. Also important was being able to attend functions of all sorts and being able to interact with his carers. The total cost of support was stated to be £1739.15. Of this, his personal contribution was calculated at £99.05. The ILF would provide £737.10 and the Defendant would provide £903.
- On 14 December 2014, the Defendant wrote to all users who were in receipt of funding from the ILF, stating that the Defendant would be assessing the level of provision needed to meet service users' needs and advising that some individuals might experience a reduction in their total funding. This was because some service users had obtained ILF funding to provide for additional support beyond that needed to meet their lawfully assessed needs under the 2014 Act.
Assessments during 2015
- On 27 January 2015, Ms Lovelock conducted a Social Care Assessment entitled "Overview Assessment" ("the January Assessment"). This was in a standard form with pre-printed questions, and answers completed, and divided into four sections. In section 1: General, it is recorded that the Claimant's preference was to use different carers throughout the day "rather than live in care". Then in answer to a question as to the three most important things in his life the Claimant answered:
"It is important to me that I continue to have the same carers as they are my community."; "Familiarity of my team who knows me well" and "My family"
- In "Section 2: Functional Activities of Daily Living Assessment", information is recorded about the Claimant's toileting needs and that he could become very anxious when he needs the toilet. In relation to social activities, it is recorded that he enjoys going out for meals, the company of his carers, that most of the team of PAs have worked for him for up to 17 years and he attends the PHAB (Physically Handicapped and Able Bodied) club in Oxford.
- Under question 23 "Safety and Risk", and in answer to a question as to the support needed during the day, it is recorded:
"Luke needs care 24 hours a day owing to physical and visual impairments. He prefers not to have any care for 2 hours on Tuesday afternoons, as he likes to spend some time on his own. He has declined to consider doing this every day (though he has done so before) which would reduce the costs of his PAs.
Luke and his mother feel that Assistive Technology would not assist him. Luke has said that he does not wish to have a live-in carer although this would be a more affordable option."
As regards emergencies, it is stated:
"When alone for 2 hours Luke has access to a large button telephone which he can use to summon help. He has needed to do this once only, according to his mother":
"Care is required to be available 24 hours a day. This is currently being provided by a team of PAs. A live-in carer would be able to meet all of Luke's needs but he feels very settled with his PAs and there are significant risks attached to making such a major change to his care provision, especially in respect of his mental health and emotional wellbeing." [emphasis added by the judge; as will be seen later, this entry was the subject of argument before the judge and before us]
- Between 5 and 18 March 2015 Ms Collins carried out an Occupational Therapy Initial Assessment. This was completed on the same standard form as the January 2015 Assessment. As regards the three most important things in his life, on this occasion, the sole thing identified was "Being independent". In Section 1 Ms Collins recorded that "the Claimant experiences anxiety when left alone and had received some professional support for this in the past". On the other hand, "Sue reported that currently Luke is left alone at home for approx two hours once a week, to enable Luke to spend some more time alone".
- In the Summary of Needs in section 3.1, one of the needs expressly identified was "For Luke to be able to spend more time alone, to develop his independence and reduce anxiety", the "options discussed" were "environmental controls systems..." and "assistance dog scheme". The relevant "outcome" was for "OT to provide info to family for consideration" and a referral to the Oxford Centre for Enablement.
- Thus in March 2015 there was a reference to the importance of independence and the need to reduce anxiety, and the need to spend more time alone in order to develop that independence, but there was no specific reference to increasing the number of hours in the day when the Claimant would be left alone.
- On 23 April 2015, Ms. Lovelock attended upon the Claimant and his mother to conduct a further assessment and produced an updated version of the January 2015 Assessment, essentially in identical terms.
- On 15 May 2015, the Defendant produced an updated draft support plan, which was in similar terms to that produced subsequently in October 2015. On 15 June 2015 the Claimant made a formal complaint to the Defendant.
- On 30 June 2015 the ILF closed and its funding was redistributed to local authorities, including the Defendant. Ms Lovelock offered to meet the Claimant and his mother. Mrs Davey declined the offer.
Reduction in funding
- At a meeting with the Defendant in early July 2015 the Claimant was informed that his personal budget would be set at £950. On 9 July 2015, the Defendant provided the Claimant with a further draft updated support plan. On 13 July 2015 the Claimant sent a pre-action protocol letter and requested a re-assessment. In response, the Defendant agreed to maintain the existing personal budget pending a further OT assessment.
- Between July and September 2015 the Claimant engaged with various OT appointments. During this period, there were a number of telephone calls between Ms Collins and the Claimant. Ms Collins noted a number of occasions on which she had spoken to the Claimant when he was, or appeared to be on his own, and commented that the Claimant seemed content to be alone.
- On 17 July 2015, Ms Collins carried out a further OT assessment. On 3 September 2015 Ms Collins reported to Ms Lovelock that, although the Claimant had agreed to a further visit on 17 September 2015, he had said that he had had enough of all the visits and her view was that the Claimant and his family would not be willing participants and future progress would be difficult, in view of Mrs Davey's confidence in the judicial review process - his family's reluctance to consider alternatives was a barrier to any intervention. On 15 September 2015 Mrs Davey reported to the Defendant that their solicitor was ready to go to judicial review.
- On around 17 September 2015, a further updated assessment was produced, as authorised by Ms Last, consequent upon and following the change in the funding arrangements. This was described as the "up-to-date Occupational Therapy Assessment", as at 17 September 2015. Although again in a standard form, it was not the same form as that used for the January Assessment and the March OT Assessment.
- On pages 1-2, it is noted that the assessment had been requested as a result of change in funding for care needs. The views of the family and carers are recorded as follows:
"Luke, Jasmine and Sue state they are happy with the current level of support, which they have been providing for the last 20 years, approximately and do not wish there to be any change to the current routine"
As regards day to day activities, "Luke states he likes to spend his days with his carers, who work "one-to-one" with him. They accompany him to the local pub and garden centre. He also attends the local "PHAB" group". Later in the Assessment, it is recorded that "Luke's carers transport and assist him with visiting friends and family and to visit local places of interest" and "Luke needs support to go out for appointments and socialise".
- Under "Your home and living situation", it is recorded:
"A reduction in Luke's current care package will enable regular visiting support rather than 24 hour support. Luke currently spends Tuesday afternoons alone at home, but has a carer present at all other times. This is Luke's choice to enjoy a period of privacy away from his carer support……….
Currently, a carer is present at all times, apart from Tuesday afternoon, when Luke requests that he enjoys some time away from his carer to watch videos in privacy"
The October 2015 Support Plan
- The October 2015 Support Plan was in standard form and 8 pages long, divided into 10 separate sections. Section 2 recorded the "Weekly Support Plan Summary" with "suggested" timings for support. On four days of the week, there would be 5 hours of the day when the Claimant was alone and on three days 5.5 hours. It is clear from this section and from section 3 that this support plan was to be based on the attendance, from time to time, of one or more of a team of carers/PAs.
- Then under "Section 4: Other support options considered" the following is stated:
"Support considered: Live in Care
Cost: £750-900 approx
Comments: Luke and his family have declined live in care at this time, preferring to retain a team of PAs".
- Under "Section 7: Keeping myself safe", the narrative of the standard form reads:
"Life is full of risks. Risk is often thought of in terms of danger, loss, threat, damage or injury. But as well as potentially negative characteristics, risk-taking can have positive benefits. As well as considering what could go wrong, it is worth thinking about potential benefits ('nothing ventured, nothing gained') This section of your support plan is to help you agree a level of risk that is acceptable."
The form is then filled out by listing 7 aspects of the support plan "that may make me or others less safe", and, against each, how it is likely to arise, whether there are benefits and what can be done to keep him safe. There is no mention here at all of the risk of anxiety arising from spending time alone. However, item 7 does state as something which may make the Claimant less safe the following:
"Luke risks loss of independence and autonomy as although he lives in his own home he has become dependent on carers and family to meet his needs".
In the next column it is said that this risk could be:
"Managed by carers encouraging Luke to do as much as possible for himself, within safe limits. ..."
The Claimant contends that anxiety from being alone is not identified as a risk arising from any reduction in carers' time.
- Section 8 deals with the Personal Budget itself setting out the reduction over time from £1651 to £950. This is to be provided by "Personal Assistants" at a weekly cost of £950.
- In October 2015 the decision to reduce the Claimant's personal budget was confirmed. On 1 October 2015, Ms Lovelock and Ms Cook completed a fresh support plan. The Claimant's funding was to be reduced from £1651 to £950 per week by 1 May 2016, with the amount tapering down on a monthly basis starting on 1 November 2015.
- On 15 October 2015, the Defendant wrote saying that needs had been reassessed and a new care plan had been devised and enclosing, for the first time, both the September 2015 Assessment and the October 2015 Support Plan. The latter provided for a budget based on costings, when the Claimant would be alone for 6.5 hours each day.
- Also on 15 October 2015, Jasmine Davey received a document entitled "Suggested timings for Luke from October 2015". This set out not only the timings contained in the October 2015 Support Plan, but, in more detail also the calculation of how the details would change as the personal budget tapered down over the following six months. At the outset there was to be care for 19 hours per day, reducing to 17.5 hours from January 2016 onwards.
- On 2 February 2016, the Claimant obtained an independent OT report from Ms Sharmin Campbell. Ms Campbell's view was that the Claimant could be left on his own for up to two hours at a time but no longer (due to his toileting needs). The Claimant then sought to persuade the Defendant to review its position on the basis of that independent OT report.
- On 2 March 2016 the Defendant declined. Addressing the issue of time spent alone, the Defendant stated:
"… Introduced in the plan are increased times when Mr Davey may be alone and it has been assessed that he can safely be left alone and these include when he would normally be resting in bed e.g two hours at the start of the day. Mr Davey had already elected to spend time alone on Tuesday afternoons. Discussions had been held on how the time he chooses to spend alone can be extended so that there are increased intervals when no carers are present. Built in to the plan are also times when he would be without a carer and options to manage those times had been discussed (such as use of a large button phone if assistance is required); his time alone has not been driven or constricted by funding."
- The Defendant enclosed a further, revised, detailed "Proposed timings and costings from May 2016". In this document the hours of care per day were increased slightly to 18 hours and the weekday rate was increased to £7.20 due to the increase in the minimum wage from April 2016, but the weekend rate was further reduced to £9 per hour. There was thus no increase in the personal budget.
- On 5 April 2016 the Claimant sent a further pre-action protocol letter, in which he counter-proposed a budget of £1224.25 per week, offering to try to be alone for two hours plus an extra two hours per day and the PAs agreeing to accept the loss of mileage payment and the reduction in the night shift rate. However the Claimant indicated that he was not willing to accept the reduced weekend rate, the reduction in the day rate for the two main carers, Sue and Cheryl, nor the payment at standard rate on bank holidays.
- By letter dated 14 April 2016, this offer was rejected by the Council. As regards carers' terms and conditions, they said that there was no evidence that carers would leave as the two main carers had withdrawn their resignations, and the minimum wage of £7.20 and the £40 night shift rate were compatible with rates many other service users were paying.
The claim for judicial review
- The claim was issued on 13 May 2016. The principal decision of which judicial review was sought was "the Defendant's decision to decrease the Claimant's personal budget by over 42% making it insufficient to meet the Claimant's needs." Seven grounds were put forward. On 8 June 2016 Judge Keyser QC, sitting as a judge of the Administrative Court, granted permission on grounds 1-4:-
Ground 1: The Defendant's decision that the Claimant should or can be left alone for extended periods each day is not a lawfully assessed need and contrary to s.9(4) of the Act.
Ground 2: The decision that the care plan and personal budget is adequate to meet the Claimant's assessed needs is unlawful as the Defendant failed to have regard to a number of relevant considerations, as follows:
2a: The Defendant failed to consider the risk to the Claimant's psychological wellbeing arising from having to spend more time alone.
2b: The Defendant failed to consider whether spending more than two hours alone is incompatible with the Claimant's assessed need for assistance with the toilet.
2c: The Defendant failed to consider the effect of spending periods of time alone upon the Claimant's ability to engage in social activities.
2d: The Defendant has failed to take all reasonable steps to reach agreement with the Claimant about how it should meet his needs, contrary to section 27(5) of the Act.
Ground 3: The Defendant failed to consider the risk to the Claimant's wellbeing if his team of PAs has to change.
Ground 4: The Defendant failed to evidence its contention that the proposed rates for PAs are reasonable or compatible with its obligations under the Act and/or has had regard to an irrelevant consideration.
- Judge Keyser also granted interim relief as sought by the Claimant, namely an order that until judgment on the substantive judicial review the Defendant should continue to make direct payments to the Claimant in the sum of £1224.25 per week minus his assessed contribution.
- Substantial witness statement evidence was filed and served, including three witness statements from the Claimant himself, and one from Jasmine Davey. On the Defendant's part there were four witness statements from Ms Lovelock and one from Ms Last. Ms Lovelock's repeatedly expressed the view that spending more time alone would be beneficial for the Claimant, and also that live-in care was an affordable option.
- The Equality and Human Rights Commission were granted permission to intervene by way of written submissions and did so.
- The substantive hearing took place before Morris J on 2 and 4 November 2016. By a judgment handed down on 27 February 2017, the claim was dismissed on all grounds. I will come later to consider in more detail the three grounds which are the subject of this appeal, but will begin by summarising the judge's decision on the grounds of challenge argued before him in the briefest outline (by reference to the numbered grounds):
(1) The Defendant's approach of seeking to develop independence and reducing anxiety by providing for the Claimant to spend more time alone was not unlawful;
(2a) The Defendant did not fail to consider the risk to the Claimant's psychological wellbeing arising from having to spend more time alone;
(2b) This original ground of challenge had fallen away as a result of the Claimant accepting that his toileting needs could be met by organising the proposed six hours alone per day into three separate periods of two hours;
(2c) The Defendant did not fail to consider the effect of the Claimant being expected to spend three periods of two hours per day alone upon his ability to engage in social activities; there was thus no breach of Section 1 of the Care Act 2014 or other unlawful act;
(2d) The Defendant did not fail to take reasonable steps to reach agreement with the Claimant about how it should meet his needs;
(3) The Defendant did have regard to the need to ensure that decisions about the Claimant were made having regard to all the Claimant's individual circumstances and thus acted in compliance with its duty under Section 1(3)(d) of the 2014 Act;
(4) It had not been established that the Defendant failed to evidence its contention that the proposed rates for personal assistants providing care to the Claimant were reasonable or compatible with its obligations under the 2014 Act.
- The Claimant sought permission to appeal on grounds 2c, 3 and 4. On 19 June 2017 Lewison LJ granted permission and ordered expedition of the appeal. In addition to the EHRC, who were again permitted to intervene by way of written submissions, similar permission was given to Inclusion London, a charity run by and for deaf and disabled people.
Factual developments since the judgment of Morris J
- There has been a flurry of recent witness statements on each side. Mr Cardinal, the Claimant's solicitor, was the first, when seeking an order for an expedited appeal; he relayed what the Claimant and his carers had to say about the effect of the reduced budget which came into force when the judgment below was handed down, bringing the interim relief to an end. Ms Lovelock responded on 17 July 2017, stating that the Claimant now spends three periods of two hours each day alone; and also that two new carers have joined the Claimant's team, each paid at the current minimum wage of £7.50 per hour. Finally the Claimant and Sue Davey, in statements served less than a week before the hearing in this court, by which time Ms Lovelock was on leave, again emphasised the difficulties caused by the reduced budget.
- We read the supplementary statements, and it would have been artificial to try to exclude them altogether. But our task is to decide whether or not the judge reached the right decision on the material before him. I do not, in any event, consider that the new evidence has a transformative effect on either side's case, and it was not suggested in oral argument that it does.
The Care Act 2014
- The Care Act 2014 was enacted following a 2011 report of the Law Commission (at that time chaired by Sir James Munby), Adult Social Care (Law Com No. 326). The most important section of the Act is Section 1, which provides:-
"Promoting individual well-being
1. (1) The general duty of a local authority, in exercising a function under this Part in the case of an individual, is to promote that individual's well-being.
(2) "Well-being", in relation to an individual, means that individual's well-being so far as relating to any of the following-
(a) personal dignity (including treatment of the individual with respect);
(b) physical and mental health and emotional well-being;
(c) protection from abuse and neglect;
(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);
(e) participation in work, education, training or recreation;
(f) social and economic well-being;
(g) domestic, family and personal relationships;
(h) suitability of living accommodation;
(i) the individual's contribution to society.
(3) In exercising a function under this Part in the case of an individual, a local authority must have regard to the following matters in particular:–
(a) the importance of beginning with the assumption that the individual is best-placed to judge the individual's well-being;
(b)the individual's views, wishes, feelings and beliefs;
(c) the importance of preventing or delaying the development of needs for care and support or needs for support and the importance of reducing needs of either kind that already exist;
(d) the need to ensure that decisions about the individual are made having regard to all the individual's circumstances (and are not based only on the individual's age or appearance or any condition of the individual's or aspect of the individual's behaviour which might lead others to make unjustified assumptions about the individual's well-being);
(e) the importance of the individual participating as fully as possible in decisions relating to the exercise of the function concerned and being provided with the information and support necessary to enable the individual to participate;
(f) the importance of achieving a balance between the individual's well-being and that of any friends or relatives who are involved in caring for the individual;
(g) the need to protect people from abuse and neglect;
(h) the need to ensure that any restriction on the individual's rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised."
- The judge accepted the submission of Mr Burton for the Claimant that the duty under s 1(1) is distinct from the duty under s 1(3); and that s 1(1) and (2) impose a distinct duty upon the Defendant, in each individual case, to promote the individual's wellbeing including physical and mental health and emotional wellbeing. However, the primary focus of the claim before the judge, and before us, has been Section 1(3)(d).
- Section 78 (1) of the 2014 Act requires local authorities, when exercising functions given to them by Part 1 of the Act, to follow general guidance issued by the Secretary of State. There is a single such document, Care and Support Statutory Guidance. It includes these paragraphs:-
"1.1 The core purpose of adult care and support is to help people to achieve the outcomes that matter to them in their life.
1.2 Local authorities must promote wellbeing when carrying out any of their care and support functions in respect of a person ... it is a guiding principle that puts wellbeing at the heart of care and support……..
1.7 Promoting wellbeing involves actively seeking improvements in the aspects of wellbeing."
- Section 9 of the Act makes provision for needs assessments:
"Assessment of an adult's needs for care and support
(1) Where it appears to a local authority that an adult may have needs for care and support, the authority must assess –
(a) whether the adult does have needs for care and support, and
(b) if the adult does, what those needs are.
(2) An assessment under subsection (1) is referred to in this Part as a "needs assessment"…….
(4) A needs assessment must include an assessment of –
(a) the impact of the adult's needs for care and support on the matters specified in section 1(2),
(b) the outcomes that the adult wishes to achieve in day-to-day life, and
(c) whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes."
- The judge made the following observations on this sub-section with which I would agree. First, the assessment duty is a duty upon the local authority and the assessment under s 9(1)(a) and (b) is an objective assessment made by the local authority (usually acting through its social workers or occupational therapist). Secondly, under s 9(4), there is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes. On the other hand if, in the course of a needs assessment, the local authority does not assess the matters specified in s.9(4) (including the impact on well-being matters set out in s.1(2)), then there is a breach of the statutory duty.
- Section 13 of the Act and the Care and Support (Eligibility Criteria) Regulations 2015 (SI 313 of 2015) make provision for eligibility criteria, set, for the first time, on a national basis. Where the local authority is satisfied that the adult has needs for care and support, it must determine whether any of the identified needs meet the eligibility criteria. Where at least some of those needs meet the criteria, the local authority must consider what could be done to meet those needs and whether the adult wants those needs to be met by the local authority.
- Section 18 imposes a duty upon the local authority, having made a determination of the needs which are eligible under section 13, to meet the adult's needs which meet the eligibility criteria, subject to a means test analysis.
- Sections 24 to 26 make provision for care planning. Section 24 sets out the steps which the local authority must take following the needs assessment. Section 25 then prescribes the contents of a care and support plan. By s 25(3), the local authority must involve both the adult and any carer that the adult has in the preparation of a care and support plan. By s 25(5) it must take all reasonable steps to reach agreement with the adult for whom the plan is being prepared about how the local authority should meet the needs in question.
- Section 26 deals with what should be contained within a personal budget and provides:
"(1) A personal budget for an adult is a statement which specifies –
(a) the cost to the local authority of meeting those of the adult's needs which it is required or decides to meet as mentioned in section 24(1)
(b) the amount which, on the basis of the financial assessment, the adult must pay towards that cost, and
(c) if on that basis the local authority must itself pay towards the cost, the amount which it must pay"
- As regards transparency and sufficiency in the personal budget, relevant parts of the Guidance include the following:
"11.25 The Act states that the personal budget must be an amount that is the cost to the local authority of meeting the person's needs. In establishing the 'cost to the local authority', consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget. To further aid the transparency principle, these cost assumptions should be shared with the person so they are aware of how their personal budget was established."
- Sections 31 to 33, and the Care and Support (Direct Payments) Regulations 2014 (SI 2871 of 2014), deal with direct payments. Direct payments are defined in s 31(1), which provides that s 31 applies where "…..:
(a) a personal budget for an adult specifies an amount which the local authority must pay towards the cost of meeting the needs to which the personal budget relates, and
(b) the adult requests the local authority to meet some or all of those needs by making payments to the adult or a person nominated by the adult."
- In December 2015 the Defendant produced a guide on how direct payments can be used to pay for care and support services in Oxfordshire ("the Oxfordshire Guide"). After explaining the process of assessing eligible needs and the setting of a personal budget, it states that direct payments can be used to employ and pay for a PA. As regards how much to pay PAs, it states:
"You must pay them at least the national minimum wage. On average, the typical hourly rate for a Personal Assistant is around £8.50 during the week and £11.05 at the weekend. …"
The United Nations Convention on the Rights of Persons with Disabilities
- Before the judge, the Claimant sought to support his case, particularly in relation to Ground 2c, by reliance upon the United Nations Convention on the Rights of Persons with Disabilities. (UNCRPD), Article 19. This provides:-
"Living independently and being included in the community
States Parties to this Convention recognize the equal right of all person with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
a. Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
b. Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;
c. Community services and facilities for the general population are available on an equal basis to persons with disabilities"
- The statutory Guidance issued under the 2014 Act refers to the UNCRPD and the concept of "independent living" (although the Act itself does not):-
"1.18 Although not mentioned specifically in the way that "well-being" is defined, the concept of "independent living" is a core part of the wellbeing principle……………
1.19 … The language used in the Act is intended to be clearer, and focus on the outcomes that truly matter to people, rather than using the relatively abstract terms "independent living""
- The judge held that the UNCRPD is an unincorporated international treaty which, absent incorporation, creates no direct obligations in UK domestic law. But by ratifying a convention a State undertakes that wherever possible its laws will conform to the laws and values that the convention enshrines. A domestic UK statute must be interpreted in a way that is consistent with the obligations undertaken by the UK under any relevant international conventions. Words of a UK statute passed after the date of the treaty and dealing with the same subject matter are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the treaty obligation and not to be inconsistent with it: see A v SSHD  UKHL 71. There is a strong presumption in favour of interpreting an English statute in a way that does not place the UK in breach of its international obligations, and accordingly the UNCRPD could be resorted to as a construction of a particular provision of the 2014 Act in case of ambiguity or uncertainty. However, great care must be taken in deploying provisions of a convention or treaty which set out broad and basic principles as determinative tools for the interpretation of a concrete measure such as a particular provision of a UK statute. Provisions which are aspirational cannot qualify the clear language of primary legislation.
- Morris J held that no specific ambiguity in the 2014 Act had been identified in respect of which Article 19 might serve as an interpretative tool. He added:
"…The importance of the wishes of the service user is fully addressed in the provisions of the Act itself. The relative balance between those wishes and the assessment of the local authority is struck in the provisions of the Act themselves. In my judgment, and in the light of the principles set out above, there is no warrant for a conclusion that, by dint of the application or consideration of Article 19 itself and the concept of independent living therein, that balance is weighted more in favour of the service user, than it would otherwise be under the Act, to the extent that the service user can have the final say on his own needs and personal budget or dislodge the principle that, under the Act, the decisions are ultimately to be taken by the local authority. The wishes of the disabled person may be a primary influence, but they do not amount to an overriding consideration."
- On appeal to this court, Mr Burton did not argue that there was any error in the judge's conclusion that Article 19 of the UNCRPD did not assist the Claimant's case. I have set out the judge's conclusions on this topic only because the EHRC, in their written submissions lodged as interveners in this court, argued that "the decision of the Respondent in this case, and the judgment of Mr Justice Morris upholding that decision, goes against the principles of Article 19 of the UNCRPD". I need say no more in the present case than that, with respect to the EHRC, the judge's analysis seems to me entirely correct. But this should not prevent the argument being advanced in a future case where it is the subject of adversarial argument by the parties.
The grounds of appeal
- I turn to the three grounds of appeal relied on in this court. I will follow Mr Burton's example in his oral argument and deal with them in the order 3, 4 and 2c, since ground 3 is at the heart of the Claimant's case.
Ground 3: Risk to existing team of PAs
- The Claimant contends that the changes in the terms and conditions of the Claimant's PAs give rise to a substantial risk that the existing team of PAs will no longer work for the Claimant. The continuity of that existing team over more than 17 years (in two cases 20 years) contributes to the Claimant's wellbeing, and the prospect of losing that team poses a significant risk to the Claimant's mental health and wellbeing.
- Mr Burton submits that there is no evidence that at the time the Defendant did consider the possible effect of the changed conditions upon the existing team and thus upon the Claimant's wellbeing. In failing to consider that risk, he argues, the Defendant has breached its duty under s.1(3)(d) to have regard to "all the individual circumstances" of the Claimant. He also submits that Ms Lovelock's view that to change the team would have a positive effect is inconsistent with the finding in the assessment itself, which on its proper construction was an acceptance by her that a change of team would pose a significant risk.
- The Defendant submits that there can only be unlawfulness in this case if the Defendant did not have regard to the risk of the PAs leaving and it was Wednesbury unreasonable for them not to have done so. The Council contends that there is no evidence that the team of carers will substantially change as a result of the reduction in the Claimant's personal budget. Mr Auburn contends that the Defendant is not required to guess about what might happen in the future. The Defendant did consider what the position would be if the carers left, but took the view that a change in his existing team would be positive for the Claimant, and that the existing team was inhibiting his independence.
- As noted above, the January and April 2015 Assessments each contained in section 23 of the forms the same entry made by Ms Lovelock:
"……A live-in carer would be able to meet all of Luke's needs but he feels very settled with his PAs and there are significant risks attached to making such a major change to his care provision, especially in respect of his mental health and emotional wellbeing" [emphasis added by Morris J]
- The judge held:-
"169. In my judgment, on a literal reading of this underlined passage, the view that there are risks in making a change to live-in care as suggested is the opinion of the writer of this section of the report. I find it difficult to understand that passage as meaning, as suggested subsequently by Ms Lovelock, that the perception of risk there referred to was that of the Claimant alone. However, the "major change" referred to in that passage was a change from the existing team of PAs to the option of live-in care (i.e. no team of PAs at all) and as I have found above, I do not consider that under the October 2015 Support Plan live-in care was an option. The passage therefore does not expressly or directly address the issue of a change within the make-up of the team of PAs (assuming care continues to be provided by a team of carers). At most, the passage might raise the possibility that such a change might carry some risk."
- I agree with the judge's interpretation of the underlined passage in both respects: firstly, that it represented Ms Lovelock's view and not only the Claimant's; but secondly, that the "major change" which in her view would carry "significant risks" was a change to a live-in carer rather than a change in the team of PAs.
- The judge concluded:
"171. As to whether the Defendant did have regard to the Claimant's individual circumstances, first, I do not accept that the October 2015 Support Plan was based exclusively on the existing team of PAs. It was based on a team of PAs. Secondly, the Defendant was plainly aware of the Claimant's own view of the importance of his existing team of PAs and to that extent took account of it as a consideration. [Thirdly], and importantly, there is no sufficient evidence that, at the time of the impugned decisions, or indeed since, the changes in the pay and conditions of the PAs had resulted or will result in the break up of the existing team of PAs, or indeed any one or more members of the team of PAs leaving. I accept the Defendant's submission that, in making its assessments, the Defendant was not required to make judgments about the future: see [R(M) v Slough LBC] and paragraph 57 above.
172. Finally, and in any event, the Defendant did not consider that a change in the team, even if it did occur, would have an adverse impact upon the Claimant's mental health and wellbeing. In her witness evidence, Ms Lovelock explains that in her view changes in the Claimant's current care team would be positive for the Claimant and his emotional wellbeing, enabling him to reduce dependence upon specific carers. This would be unsettling in the short term, but bring important benefits in the longer term. In this way, the Defendant, did, in general terms, take account of the importance of the existing team of carers."
- Mr Burton for the Claimant and Mr David Wolfe QC for Inclusion London both criticise the last sentence of paragraph 171. It is correct as a statement of law, but it is not an answer to the Claimant's case under ground 3. In R(M) v Slough LBC  1 WLR 1808 at - Lord Neuberger of Abbotsbury said:
"As a matter of ordinary language, while reformulation of a statutory expression can be dangerous, "are in need of" means much the same as "currently require"……… As for the word "are", it seems to me that, unless the contextual imperative to the contrary is very powerful indeed, the use of the present tense excludes the future, let alone the future conditional. It would seem wrong to extend a duty owed to a person who satisfies a statutory requirement to a person who currently does not satisfy the requirement simply because he will or may do so in the future. I should add that, as a matter of practicality, humanity and common sense, this cannot mean that a local authority is required to wait to act under section 21 until a person becomes seriously in need, however close and inevitable that serious need may be, and however much the authority reasonably wants to assist at once……."
- The Claimant's case under Ground 3 is not that there is a risk that the existing team of PAs might break up at some point in the future but rather that the risk is real and imminent. Although there is no bright line distinction between an imminent risk and a future one, I do not think that R(M) v Slough LBC is of any real assistance to Mr Auburn in resisting the Claimant's case under Ground 3.
- Mr Burton contends that this reference to R (M) v Slough LBC "contaminates" the rest of the judge's conclusions at paragraphs 171-172. I cannot accept that it does. Even if one deletes the last sentence of paragraph 171, the judge's factual findings remain: that the October 2015 Support Plan was based on a team of PAs, not the existing team of PAs; and - critically - that no sufficient evidence had been provided that the changes in the pay and conditions of the PAs had resulted or would result in the breakup of the existing team. Mr Burton took us to a number of emails in which Mrs Davey expressed her concern about the results of the reduction in pay and the changes in conditions, and a file note of a conversation between Ms Lovelock and Sue Davey in which Ms Davey stated that she and Cheryl would leave if they had to accept the reductions, in order to persuade us that the judge's finding was not open to him. I disagree. These are findings which I consider the judge was entitled to make on the evidence before him. They are sufficient to defeat the challenge based on Ground 3 even without consideration of the question of whether, in the Defendant's view, a change in the team would be positive.
- As to the last point, Ms Lovelock's view has been criticised by Mr Burton as being irrational – indeed he came close in oral argument to contending that it was not genuinely held. I am quite satisfied, as the judge plainly was, that it was a genuine view. It does seem counterintuitive to me, at least if one is referring to a complete or substantial break-up of the team who have looked after the Claimant for so long; but I am not an expert in the field, and I cannot possibly say that the view expressed by Ms Lovelock is irrational. In any event, if the judge was entitled, as I have held that he was, to find that there was no sufficient evidence that the existing team of PAs would break up, the issue of whether or not that would be a positive move in reducing the Claimant's dependence on them simply does not arise.
- Mr Burton also criticises the view that change would be positive as being an afterthought not expressed in the contemporaneous documents, which thus falls foul of authorities such as R v Westminster CC ex p Ermakov  2 All ER 302. It may be that Ms Lovelock's opinion on the desirability of change was not recorded in the 2015 assessments because the Council accepted that, given the importance attached to the Claimant's views by s 1(3) of the 2014 Act, they should not seek to impose Ms Lovelock's opinion on the Claimant. As to the rule against ex post facto rationalisation, I would caution against applying the standards required of (for example) a decision on a planning application to the entries made by local authority social workers in assessments or care and support plans. I agree with the observations of Hallett LJ in R (Ireneschild) v Lambeth LBC  EWCA Civ 234 at 57:-
"One must always bear in mind the context of an assessment of this kind. It is an assessment prepared by a social worker for his or her employers. It is not a final determination of a legal dispute by a lawyer which may be subject to overzealous textual analysis. Courts must be wary, in my view of expecting so much of hard pressed social workers that we risk taking them away unnecessarily from their front line duties."
- In any event, as with the suggested irrationality, this issue is rendered somewhat academic by the judge's finding of fact that there was no sufficient evidence that the existing team of carers will in fact break up.
- The judge was therefore right to reject Ground 3.
Ground 4: Failure to evidence that the proposed rates for PAs were reasonable
- The judge held:-
"181. …In my judgment the Claimant has not established [his] case on Ground 4. Even if, which is not entirely clear to me, there is a sufficient legal basis for this challenge, the case is not established on the facts. In her evidence, Ms Lovelock states, that on the basis of her knowledge of the local area and the rates paid by others, she is confident that the rates in the indicative plan are sufficient to recruit carers. The rate of £8.50 in the Oxfordshire Guide is a national average and rates vary across different parts of the county……The Claimant has in the past and recently himself recruited external non-family carers at the minimum wage. Ms Lovelock is confident, from her experience of others within the county, that she could continue to do so for up to £8 per hour……
182. Finally, and in my judgment, significantly, Ms Lovelock states in evidence that, if it was in fact proving difficult to find sufficient carers, the Defendant would consider increasing the personal budget when the care plan is reviewed. This is an important safeguard that will meet any concerns in the future and one which the Court has no reason to believe will not be put in place.
183. In these circumstances, I do not consider that there is a basis for demonstrating that the professional judgment of an experienced social worker on matters of detail can be shown to be Wednesbury unreasonable."
- No one could criticise Sue Davey's opinion that payment at minimum wage rates is a poor reward for a carer of her quality and experience. But as the statutory Guidance makes clear in paragraph 11.25 cited above, a personal budget should reflect local market conditions. The judge was plainly entitled to accept Ms Lovelock's evidence about local market conditions in the area of the Claimant's home, together with the indication that if those conditions change the Council would be bound to revisit the issue. The Claimant is in effect saying to the Council "(a) some of my carers are not prepared to work for the local going rate; (b) therefore, in order to maintain the continuity which I value, you must set my personal budget at a level which enables me to pay them more than that rate". I do not consider that it is unlawful for the Council to decline to do so. Ground 4 therefore fails.
Ground 2c: Social activities
- The judge held:-
"149. The ability of the Claimant to engage in social activities, including activities within the local community, has always been important to the Claimant's wellbeing and has consistently been recognised as such in the assessments over time. He has been an active participant in local activities. Ms Lovelock's evidence, in her second witness statement, is that, in determining the Claimant's budget, she did have regard to his wish to spend time in the community. She goes on to identify in detail the Claimant's social activities and concludes that there are sufficient time blocks each day when he can engage in social activity.
150. Initially, in these proceedings the Claimant claimed that the proposed Personal Budget in the October 2015 Support Plan might mean that there might not be sufficient time to enable him to go on trips to the local town and would prevent him from undertaking the activities he did outside the home. However, the subsequent evidence shows that this concern has not been borne out. Under the Personal Budget, a wide range of social activities remain open and available to the Claimant. In his second witness statement, the Claimant accepts that he will have time to go on trips to the local town, giving him between an hour and an hour and a half in town.
151. In my judgment, under the Personal Budget, as submitted by the Defendant, the Claimant will still be able to participate in a wide range of social activities, including, but not limited to, trips to the local town.
152. The only substantial issue which is now said to arise out of the Personal Budget is whether or not the Claimant will be able to continue to go on day trips out of town. The Defendant suggests, first, that he can be accompanied on such trips either by a volunteer or by a family member (as in the case of his cinema trips with his brother) or he could "store up" PA time, by having other days where he has a quiet day at home. As to the latter, I accept the Claimant's response that such storing up might lead to him having to spend more than two hours at a time alone, thus raising the concerns about anxiety from such extended periods of solitude.
153. I do not accept that, in general, the suggested timings of the PAs (in time limited slots) will prevent the Claimant from engaging in a wide range of social activities. It is possible that there might be less opportunity to go on day trips accompanied by his PAs. This very limited curtailment does not amount to a breach of s.1 of the Act……
154. Moreover it is clear on the evidence that the Defendant did take account of the effect of the Personal Budget, in particular the timings for PAs, upon the Claimant's social activities. I do not consider that the possibility of reduced opportunities of day trips accompanied by his PAs is capable of vitiating the impugned decisions on the grounds of failure to take account of an obviously material consideration or is in any way otherwise Wednesbury unreasonable."
- In an early witness statement Ms Lovelock stated that "it is only during the proceedings that the issue of Mr Davey going on day trips has been raised". There is a degree of ambiguity in the phrase "day trips", but if it means trips lasting all day, it is right to say that such trips, other than to the Claimant's parents, hardly feature at all in the contemporaneous evidence. The judge was entitled to make the findings of fact which he did in the paragraphs just cited., and on that basis to reject the claim under Ground 2c.
- As Morris J rightly observed, it is understandable that the Claimant, Mrs Davey and other members of his family objected to the updated needs assessment, which has resulted in a substantial reduction in the level of the Claimant's personal budget. Like the judge, I have great respect for the manner in which the Claimant, his family and his team of carers cope with his difficult situation. But that is not the same thing as holding that the Council's actions have been unlawful. For these reasons, essentially the same as those of Morris J in his meticulous and comprehensive judgment, I would hold that the Council have not acted unlawfully. I would therefore dismiss the appeal.
Lady Justice Thirlwall:
- I agree. The Claimant has for many years had the benefit of stable and high quality care. Like Bean LJ, I find it difficult to see how a change in the team could be thought to be beneficial but in the light of the judge's findings about the likelihood of this I say no more about it. The very significant reduction in the Claimant's personal budget was reached at the end of a lawful process, as the judge found. Accordingly I too would dismiss the appeal.
Lord Justice McFarlane:
- I also agree.
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