B e f o r e :
THE HONOURABLE MR JUSTICE MORRIS
|| THE QUEEN
(on the application of
||- and -
||OXFORDSHIRE COUNTY COUNCIL
||THE EQUALITY AND HUMAN RIGHTS COMMISSION
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,
Solicitor) for the Intervener
Hearing dates: 2 and 4 November 2016
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Mr Justice Morris:
- By this action, 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/or to revise his care and support plan pursuant to the Care Act 2014 ("the Act"). The effect of these decisions is to set the personal budget for the Claimant's care at £950 per week with effect from 1 May 2016. This is a reduction from his pre-existing budget of £1651 per week. The relevant reduction arises because the proposed budget is based on, first, increased time spent alone by the Claimant himself without the assistance of his personal assistants ("PAs") and, secondly, reduced rates of pay paid, and terms and conditions offered, to the PAs.
The Claimant and his family
- The Claimant, now aged 40, is, and has been since shortly after birth, a severely disabled adult 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 activities of daily living, including accessing the community). As regards his psychological health, he has in the past been recorded as having depression, persistent low mood and anxiety. There is some dispute as to the extent of the Claimant's disability, in particular in relation to mobility and the extent to which he has suffered or continues to suffer from symptoms of anxiety. Whilst fully recognising the Claimant's serious disability, the Defendant, from its own observations, assesses his needs as being "non-complex" and manageable.
- The Claimant receives strong support from his family, led very much by his mother Jasmine Davey, who is now aged 75. She has recently received further treatment for skin cancer. His sister Rachel, his sister in law, Sue Davey and his father, Tony Davey are also active as carers. Despite these very substantial disadvantages, and undoubtedly due to the aid of his family and his team of carers, the Claimant leads an active and engaged life. This is very much to his credit. The Claimant and his mother were present during the course of the hearing. Both listened attentively and with considerable dignity.
- 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 ("Ms Lovelock"), a social worker with 26 years' experience, with particular expertise in disability and adult mental health; Ms Julie Collins, an occupational therapist and Ms Jill Last the OT Practice Supervisor and Ms Collins' line manager.
Background to the claim
- 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, Oxfordshire on 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 family carers are all paid.
Care and funding arrangements in the past
- For many years, the Claimant has received adult social care support under relevant legislation. Until June 2015, based on a needs assessment and a care plan, this care was funded to the tune 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 Health Service/NHS and by a small means tested contribution from the Claimant.
Change in funding
- By January 2015 it was public knowledge that the ILF was to close down. The ILF closed with effect from June 2015. Thereafter the funding of the Claimant's care and support has been provided by the Defendant alone, and the Defendant has decided to reduce the sum paid to £950 per week with effect from 1 May 2016.
- The Claimant contends that, following the closure of the ILF, the Defendant agreed to fund the same care arrangements, namely through a team of visiting PAs. The Defendant contends that in order to meet his needs, it is required to do so to the amount of £950 per week. The Claimant's position is that those 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 position at a weekly sum of £950. Following 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 Act and/or is Wednesbury unreasonable. The Claimant's grounds of challenge are set out in detail at paragraph 109 below. He asserts that there were two underlying reasons given for the Defendant's decision to reduce the personal budget. First, the Claimant could spend more time alone without the benefit of a PA being present. Secondly, the Claimant could and should reduce the amount which he pays to his PAs. This, the Claimant says, poses 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 present throughout the history of assessments right up to assessments in September 2015. The Claimant and his family believe that the Defendant set a budget and then assessed the Claimant's needs so as to fit that budget. The Defendant denies this.
- The Claimant in turn has sought to modify his position. He has agreed to being exposed, each day, to two additional hours of time alone (rather than four) so that he is alone for four hours a day, rather than 6½ hours and has 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 per week. The dispute is thus between £950 and £1224.
(B) The Legal Background
The Legislative Framework
- The legislative framework for adult social care, previously to be found in a complicated array of statutes, subordinate legislation, guidance and directions, was modernised and brought together by the introduction of the Care Act 2014. I am grateful to Mr Burton, counsel for the Claimant, who set out the legislative framework under the Act in a detailed note.
- The new legal framework comprises the Act, regulations and a single statutory guidance document "Care and Support Statutory Guidance" ("the Guidance"). Section 78 of the Act imposes a duty upon a local authority to "act under" the Guidance in the exercise of functions under Part I of the Act.
- Key elements of the legislative framework are, first, the "well-being" principle and secondly the three (or four) stage structure for the provision of adult social care. That structure, reflected in the provisions of the Act, can be summarised as follows: (1) assessment of needs; (2) eligibility of the assessed needs (i.e. whether it is necessary for the local authority to make arrangements to provide services in order to meet those needs); (3) the making of the necessary arrangements by the local authority and (4) what is the reasonable cost of securing provision of those services, if the person qualifies for direct payments (see R(KM) v Cambridgeshire CC  UKSC 23 per Lord Wilson at §§15 and 23 and per Lady Hale at §45).
Independent Living Fund
- The ILF was a body which operated in partnership with local authorities to devise and provide joint care packages and direct payments to assist disabled persons to lead independent lives, as fully as possible in the community: see Bracking v Secretary of State for Work and Pensions  EWCA Civ 1345 at §5. When the ILF closed in 2015, its funds went to local authorities, including the Defendant. According to the Defendant's evidence, the ILF served as a "top up fund" to enable disabled people to have more choice. Its funds were not provided in order to meet eligible assessed care needs (as defined below in s.13 of the Act). That this was the case is implicit in the Defendant's letter to service users on 14 December 2014, pointing out that some users might experience a reduction in their total funding, because their ILF funding had been made to pay for "additional funding". See also Bracking, supra, §7.
Care Act 2014
The Well-being principle
- At the heart of the new legislation is the "well-being principle". Section 1 of the Act provides as follows:
"1. Promoting individual well-being
(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."
- In this connection, relevant parts of the Guidance provide as follows:
"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.
1.10 Whenever a local authority carries out any care and support functions relating to an individual, it must act to promote wellbeing - and it should consider all of the aspects above in looking at how to meet a person's needs and support them to achieve their desired outcomes. However, in individual cases, it is likely that some aspects of wellbeing will be more relevant to the person than others. For example, for some people the ability to engage in work or education will be a more important outcome than for others and in these cases "promoting their wellbeing" effectively may mean taking particular consideration of this aspect".
- The Guidance also refers to the concept of "independent living" in the context of "wellbeing". This is addressed further in paragraphs 34 et seq below when I turn to consider The United Nations Convention on the Rights of Persons with Disabilities ("UNCRPD").
- The Claimant relies upon the duty to "have regard" under s.1(3) and in particular upon subsections (a) and (d). He also relies upon the duty under section 1(1) as being distinct from s.1(3) duty; and submits that there can be a breach of s.1(1) separate from s.1(3). On the other hand, the Defendant contends that it is the specific elements identified in section 1(3)(a) to (h) which constitute "relevant considerations" for the purposes of legal challenge by way of judicial review in this case. I agree with the Claimant. Section 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 well-being.
Assessment of Needs
- As regards the first stage of care and support under the Act, section 9 makes provision for the "needs assessment" in the following terms:
"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."
- I make the following observations on this sub-section. First, the assessment duty is a duty upon the local authority and the assessment under section 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 section 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 wellbeing matters set out in s.1(2)) then there is a breach of the statutory duty. There is, thus, a duty on the part of the local authority to assess these factors.
- Paragraph 6.9 of the Guidance reflects the approach under s.9(4) as follows:
"6.9 The purpose of an assessment is to identify the person's needs and how these impact on their wellbeing, and the outcomes that the person wishes to achieve in their day-today life. The assessment will support the determination of whether needs are eligible for care and support from the local authority, and understanding how the provision of care and support may assist the adult in achieving their desired outcomes."
- Section 13 of the Act and the Care and Support (Eligibility Criteria) Regulations SI 313 of 2015 ("the 2015 Regulations ") 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.
- Regulation 2 of the 2015 Regulations provides that an adult's needs meet the eligibility criteria if (a) they arise from or are related to a physical or mental impairment or illness and (b) as a result of the needs, the adult is unable to achieve two or more specified outcomes and (c) as a consequence there is, or is likely to be, a significant impact on the adult's well-being. Regulation 2(2) then sets out a list of 10 "specified outcomes", covering matters such as maintaining nutrition and personal hygiene, managing toilet needs, safety in the home, maintaining family and personal relationships, engaging in work, education etc and making use of local community services. "Significant" impact in Regulation 2 is not defined, but is explained in paragraph 6.110 and 6.111 of the Guidance as follows:
"... Local authority will have consider whether the adult's needs and their consequent inability to achieve the relevant outcome will have an important consequential effect on their daily lives, their independence and their wellbeing.
In making this judgment, local authorities should look to understand the adult's needs in the context of what is important to him or her. Needs may affect different people differently, because of what is important to the individual's wellbeing may not be the same in all cases. Circumstances which create a significant impact on the wellbeing of one individual may not have the same effect on another."
This links back to the factors to which the local authority must have regard under section 1(3)(a), (b) and, particularly, (d).
The duty to meet eligible needs
- Having made a determination of needs which are eligible under section 13, Section 18 imposes a duty upon the local authority to meet the adult's needs which meet the eligibility criteria if resident in the authority's area and 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. It provides as follows inter alia:
"(1) Where the local authority is required to meet needs under section 18 ... or decides to do so under section 19... , it must
(a) prepare a care and support plan or a support plan for the adult concerned,
(b) tell the adult which (if any) of the needs that it is going to meet may be met by direct payments, and
(c) help the adult with deciding how to have the needs met".
Section 25 then prescribes the contents of a care and support plan as follows:
"(1) A care and support plan ... is a document prepared by a local authority which
(a) specifies the needs identified by the needs assessment
(b) specifies whether, and if so to what extent, the needs meet the eligibility criteria,
(c) specifies the needs that the authority is going to meet and how it is going to meet them,
(d) specifies to which of the matters referred to in section 9(4) the provision of care and support could be relevant or...
(e) includes the personal budget for the adult concerned (see section 26), and
(f) includes advice and information about
(i) what can be done to meet or reduce the needs in question;
(ii) what can be done to prevent or delay the development of needs for care and support or of needs for support in the future"
- 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 and 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. Further, by s.25(6)(a), the local authority in seeking to ensure that the plan is proportionate to the needs, must have regard in particular to the matters referred to in s.9(4). The Claimant relies particularly upon section 25(1)(c).
- 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"
Reviews of care and support plans
- Section 27 deals with review of care and support plans:
"(1) A local authority must-
(a) keep under review generally care and support plans,
that it has prepared, and
(b) on a reasonable request by or on behalf of the adult to whom a care and support plan relates
, review the plan.
(2) A local authority may revise a care and support plan; and in deciding whether or how to do so, it
(a) must have regard in particular to the matters referred to in section 9(4) (and specified in the plan under section 25(1)(d)) and
(b) must involve
(i) the adult to whom the plan relates,
(ii) any carer that the adult has, and ...
(4) Where a local authority is satisfied that circumstances have changed in a way that affects a care and support plan
, the authority must
(a) to the extent it thinks appropriate, carry out a needs
assessment, carry out a financial assessment and make a determination under section 13(1) and
(b) revise the care and support plan
(5) Where, in a case within subsection (4), the local authority is proposing to change how it meets the needs in question, it must, in performing the duty under subsection 2(b)(i)
take all reasonable steps to reach agreement with the adult concerned about how it should meet those needs."
The Claimant relies specifically upon the terms of section 27(5) in Ground 2d below.
- Sections 31 to 33, and the Care and Support (Direct Payments) Regulations SI 2871 of 2014, deal with direct payments. Direct payments are defined in section 31(1), which provides that section 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"
- By s.31(2), if four conditions are met, the local authority must make the payments to the adult or nominated person. By s.31(7), condition 4 is that the local authority is satisfied that making direct payments is an appropriate way to meet the needs in question. S.33(2)(b) provides that regulations may specify conditions which the local authority can attach to the making of direct payments and, under s.33(5), if such a condition is breached, the local authority may terminate the making of direct payments.
Oxfordshire County Council: A guide to Direct Payments
- 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 explains 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.
You will need to pay them mileage expense (only incurred during working hours) ...
You need to make sure that the hourly rate you choose is affordable, based on your Direct Payment amount and can be maintained in the long term. You will also need to factor in additional costs listed below.
Additional costs to consider
When you are deciding how much to pay your Personal Assistants you need to fact in additional costs, such as tax and National Insurance, sick leave .... etc . You will typically need to set aside 27-30% of your Direct Payment to cover these costs."
The United Nations Convention on the Rights of Persons with Disabilities
- The Claimant, supported by the intervener, the Equality and Human Rights Commission ("EHRC") seeks 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"), and in particular Article 19. The Defendant disputes its significance.
- The UNCRPD was ratified on 8 June 2009. From Article 4, it is clear that the implementation and effect of the substantive provisions of the UNCRPD are subject to the adoption of subsequent measures which are the responsibility of the contracting States. Article 19 UNCRPD itself provides:
"Article 19 - 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"
- In relation to Article 19 and the concept of "independent living", the EHRC also referred to other materials: Council of Europe Issue Paper March 2012 and a 2014 Thematic Study of the United Nations High Commissioner for Human Rights at §4. In both documents, it is emphasised the concept of "independent living" is grounded in the concepts of individual autonomy, independence and freedom to make, and to have control over, the individual's own choice and in particular in relation to choice of carers.
- The Guidance under the Act refers to the UNCRPD and the concept of "independent living" in the following terms:
"1.18 Although not mentioned specifically in the way that "wellbeing" is defined, the concept of "independent living" is a core part of the wellbeing principle. Section 1 of the Care Act includes matters such as individual's control of their day-to-day life, suitability of living accommodation, contribution to society - and crucially, requires local authorities to consider each person's view, wishes, feelings and beliefs.
1.19 The wellbeing principle is intended to cover the key components of independent living, as expressed in the UN Convention on the Rights of People with Disabilities (in particular, Article 19 of the Convention). Supporting people to live as independently as possible, for as long as possible, is a guiding principle of the Care Act. 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". (emphasis added)
Parties' submissions on UNCRPD
- As to the effect of the UNCRPD and in particular Article 19, in the context of the Act, the following is common ground. The concept of "independent living" underlies the approach to wellbeing in the Act and the Act represented a significant shift of approach in the UK legislation governing adult social care. There is no doubt that at the centre of that legislation is consideration of the wellbeing, and the wishes of the disabled person. The differences between the parties relate, first, to the role in our legal system to be played by the UNCRPD and secondly, the relative importance to be placed, in that legal framework, upon the wishes and desires of the disabled person and upon those of the service provider, the local authority.
- The Claimant submits that the UK has undertaken to ensure that its laws conform to the norms and values of the UNCRPD and relies upon Article 19 and paragraph 1.19 of the Guidance, first and specifically in relation to Ground 2c and the effect of the reduced budget on the Claimant's social activities; secondly, in relation to the issue of live-in care (Article 19(a)); and thirdly and more generally, to found an overarching submission that the Defendant's approach in this case has been too heavily based on the Defendant, rather than the Claimant himself, knowing what is best for the Claimant and that such an approach is inimical to the underlying concept of "independent living" which necessarily underpins the Act.
- The EHRC's overriding submission is that the Act represents a re-focusing of the statutory framework for the provision of adult social care, in accordance with the UNCRPD which puts the disabled person at the centre of all decisions, and makes clear that the primary influence on both the assessment of need and the provision of services must be the disabled person himself.
- As a matter of international law the UK is bound by the UNCRPD. The Act is stated to give effect to Article 19 and the concept of independent living. Article 19 is therefore more than an interpretive tool. Decision makers, including the courts, must give effect to the requirements of Article 19 when interpreting and applying ss.1-3 and 9 of the Act, which articulate the wellbeing principle and its application in relation to the assessment of need. In oral argument, the EHRC accepted that, nevertheless, the UNCRPD is not incorporated into UK domestic law. Choice, autonomy and personal control on the part of the disabled person are paramount. "Independent" living is not independence from support, but the independence or freedom that comes with making one's own choices. The disabled person must be empowered to choose between services according to his own preferences. At the stage of assessment of needs, the service user's views must be reflected, and if not accepted, there must be an adequate explanation. However the EHRC accepts that these guiding principles are reflected in ss.1 and 9 of the Act, which require an approach grounded in the wishes of the disabled person and not just an external assessment of the person's needs as perceived by others.
- The Defendant submits, first, that on any view, the application of the UNCRPD would have no effect upon the outcome in this case and thus has no direct relevance. Secondly, the Act represents the concrete expression and implementation of the concept of "independent living" and is intended to implement those principles. There is no need to look any further. The UNCRPD is not part of UK law. As regards the reference to the UNCRPD in paragraph 1.19 of the Guidance, the Guidance makes clear that the Act is not tracking or following the UNCRPD; in fact, the position is rather the opposite. Paragraph 1.19 states that the Act and its use of the concept of "wellbeing" is intended to be clearer and uses outcome focussed terms rather than using the relatively abstract term of "independent living". There is no warrant to go further than the Act, the Regulations and the Guidance. The primary audience for the Guidance are individual social workers. It cannot have been the intention of the Guidance to refer people to a partially incorporated international treaty. To do so would lead to confusion rather than clarity and that is why the Guidance had already taken the UNCRPD into account to the extent considered desirable. Had it been the intention of the UK legislative framework (namely the Act and the Guidance) to incorporate specific passages in Article 19, then it would have done so expressly and set out those parts which it wished to be considered. Finally, a submission that the effect of the UNCRPD is that it is service users, and not local authorities, who have the final say on the amount of funds spent on their care is manifestly incorrect.
- In addition to the foregoing provisions of the UNCRPD, the Act and the Guidance, I have been referred to a substantial number of authorities in relation to the nature and status of the UNCRPD, including in particular, A v SSHD  UKHL 71; AH v West London MHT  UKUT 74 (AAC); Burnip v Birmingham CC  EWCA Civ 629; Assange v Swedish Prosecution Authority  2 AC 471; R(MA) v Secretary of State  EWHC 2213 (QB); R(NM) v Islington LBC  EWHC 414 (Admin); Hainsworth v MOD  EWCA Civ 763; R (Aspinall) v Secretary of State for Work and Pensions  EWHC 4134 (Admin). From these authorities, the following principles can be stated.
- First, save as regards matters falling within the scope of EU law, UNCRPD is an unincorporated international treaty which, absent incorporation, creates no direct rights and obligations in UK domestic law: A v SSHD §27. Caution is required as regards the use of unincorporated international conventions in domestic law; they are not a source of substantive domestic legal rights: MA §80. Further it is not the case, that the Act itself is expressly stated to give effect to Article 19 UNCRPD. In fact the only reference to the UNCRPD is in the Guidance.
- Secondly, nevertheless, UNCRPD provides the framework to address the rights of persons with disabilities and by ratifying a Convention a state undertakes that wherever possible its laws will conform to the norms and values that the Convention enshrines: AH v West London MHT §16.
- Thirdly, a domestic UK statute must be interpreted in a way that is consistent with the obligations undertaken by the UK under any relevant international convention. Words of a UK statute, passed after the date of a 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: A v SSHD §27. There is a strong presumption in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations: Assange §122. Accordingly, in my judgment, the UNCRPD could be resorted to as an aid to construction of any particular provision of the Act, in case of ambiguity or uncertainty: Burnip §19 and MA, §80.
- Fourthly, however great care must be taken in deploying provisions of the UNCRPD or any international treaty, which set out broad and basic principles as being 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: see Hainsworth §32 and Aspinall §37. Many of the provisions in UNCRPD are in very general terms.
- In the present case, no specific ambiguity in the Act has been identified, in respect of which Article 19 might serve as an interpretive tool.
- Finally, 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.
General approach to judicial review and relevant considerations
- The question arises as to the extent to which the decision of a public authority can be impugned on the grounds of failure to take account of one or more particular considerations. The Defendant contends that, in the present case, other than the specific matters referred to in s.1(3) of the Act, there was no specific duty to have regard to or take account of other factors and failure to do so could not amount to grounds for judicial review unless the decision itself was Wednesbury unreasonable.
- I have been referred to a number of authorities in this regard, and in particular; CREEDNZ Inc v Governor General  1 NZLR 172 at 183; Re Findlay  AC 318 at 333F-334D; R v Home Secretary ex parte Bugdaycay  AC 514; R (Adlard) v Secretary of State for the Environment  1 WLR 2515; R (Ireneschild) v Lambeth LBC  EWCA Civ 234 at §§41, 42, 45, 53 and 77; R (Hurst) v London Northern District Coroner  2 AC 189 at §57; R (Corner House Research) v Serious Fraud Office  1 AC 756 at §40 and Associated Provinicial Picture House Ltd v Wednesbury Corporation  1 KB 223 at 233-234.
- Whilst there may be a tension between the CREEDNZ/Re Findlay line of authorities and the classic analysis of relevant considerations derived from Wednesbury, the position is as follows.
- First, where there are specifically factors required by law to be taken into account, a failure to take account of such obligatory factors will necessarily vitiate the decision: Re Findlay citing CREEDNZ, and also Adlard §§39-41.
- Secondly, there are other factors which may be taken into account (or indeed which others or the Court itself would have taken into account). In such a case, a failure to take such factors into account will not vitiate the decision.
- Thirdly, there is a class of factors which ought to be taken into account. Here a failure to take account will vitiate. Such factors have variously been described as "relevant" or "clearly relevant" or "so obviously material" to the exercise of the particular discretion such that they ought to be taken into account: see Wednesbury and Bugdaycay at 537F-G and also CREEDNZ itself and Hurst at §§57-58, and 79. See also, in the specific context of adult social care, Ireneschild supra. Whether this element is a free standing ground of vitiation or whether it is part of the assessment of whether the decision is Wednesbury unreasonable, does not seem to me to make much difference. In my view a failure to take account of such a factor will render the decision Wednesbury unreasonable.
Adult social care
- As regards the approach of the Court upon judicial review of a decision by a public authority in the field of adult social care, relevant authorities include R v Gloucestershire County Council ex parte Barry  AC 584; R (Lloyd) v Barking and Dagenham LBC  EWCA Civ 533; R (P) v Essex County Council  EWHC 2027 (Admin); Ireneschild, supra; R(M) v Slough BC  UKHL 52; R (F) v Wirral BC  EWHC 1626 (Admin); R (KM) v Cambridgeshire CC, supra; R (GS) v Camden LBC  EWHC 1762. A number of principles emerge from these authorities.
- First, as to the meaning of "need" (or "in need"), this denotes something more than merely "want" but falls far short of "cannot survive without". The words "are in need of", refers to present needs and not the future. The duty should not be extended to a person who does not currently satisfy a requirement simply because he will or may do so in the future: R(M) v Slough BC, supra §§54-55.
- Secondly, as regards the relevance of a local authority's resources, once eligible needs are assessed (stages 1 and 2), a local authority is under an absolute duty to provide the user with the services that would meet those needs or a personal budget with which to purchase them, regardless of the authority's financial resources (the third and fourth stages of the process). On the other hand, it may be legitimate for a local authority, in assessing an applicant's needs and/or eligible needs to take into consideration the availability of its resources: R v Gloucestershire County Council ex parte Barry  AC 584 and KM (raising, but not deciding, questions as to the true interpretation of Barry, particularly in relation to the stage (i) assessment).
- Thirdly, as to the correct approach to judicial review of needs and care assessments in the field of adult social care, in KM Lord Wilson stated as follows (§36):
"... in community care cases the intensity of review will depend on the profundity of the impact of the determination. By reference to that yardstick, the necessary intensity of review in a case of this sort is high. [Counsel] also validly suggests that a local authority's failure to meet eligible needs may prove to be far less visible in circumstances in which it has provided the service-user with a global sum of money than in those in which it has provided him with services in kind. That point fortifies the need for close scrutiny of the lawfulness of a monetary offer. On the other hand respect must be afforded to the distance between the functions of the decision-maker and of the reviewing court; [and some regard must be had to the court's ignorance of the effect upon the ability of an authority to perform its other functions of any exacting demands made in relation to the manner of its presentation of its determination in a particular case. So the court has to strike a difficult, judicious balance".
On the facts, KM was a case of a challenge to the monetary offer of direct payment in the case of a claimant who had very severe disabilities requiring very high levels of care and carers. It is also clear that the lawfulness of a monetary offer in a personal budget is subject to judicial review on grounds of Wednesbury rationality or failure to provide reasons.
- The Defendant contends that this passage is to be treated with considerable caution, being an obiter passage made without the benefit of argument and that it is wrong in principle. In my judgment, there is no need for the purposes of this judgment to determine the precise status of this passage. In any event the second part of Lord Wilson's analysis reflects observations made in a number of earlier decisions on the approach to review of adult social care assessments. These include the following. First, the courts should be wary of overzealous textual analysis of social care needs assessments carried out by social workers for their employers with the risk of taking them away from front line duties: Ireneschild, supra, §§ 57, 71 and 72. Secondly, it is not for the Court to be prescriptive as to the degree of detail in an assessment or a care plan - these are matters for the local authority, and if necessary, for its own complaints procedure or resort to the Secretary of State. The court is the last resort where there is illegality: Lloyd, supra, §27. Thirdly, the social worker, in the assessment, is entitled to rely upon what the service user told him at the time (even if the service user later changes evidence); there is no need for precise formulation of assessment of mental health impact in the needs assessment itself: R(GS) v Camden §§31, 33 and 47.
Admission of further evidence
- The Claimant submits that the further evidence submitted by the Defendant explaining the assessment and personal budget should not be admitted, where they contradict the contemporaneous record, relying upon the decision in R v Westminster City Council ex parte Ermakov  2 All E R 302 at 315h-j. The Defendant submits that the rule in Ermakov only applies to challenges based on breach of the duty to give reasons and does not apply to substantive challenges. Such evidence is admissible. In this regard, I accept the Defendant's submission. First, it is clear that the rule in Ermakov is a rule which applies where there is a duty to give reasons and the challenge is based on a breach of that duty. Secondly, and in any event, the rule is not a rigid rule. Even where a needs assessment has been found to have been inadequate, there may be no point in exercising discretion to order relief, where due to subsequent explanations it is clear that re-assessment would lead to the same result and it is now fully and adequately explained: KM §38. In that case the Court took account of subsequent evidence even in the context of a reasons challenge, where the evidence explained what had happened at the time.
(C) The Facts in more detail
Care Assessments and Reviews: 2004 to 2009
- Between 2004 and 2009, the Defendant carried out a number of needs assessments and care reviews in relation to the care provided to the Claimant. In the reviews over this period, there was consistent reference to the Claimant's need for 24 hour care being provided by the team of carers that he chooses, and to the fact that he had built up a good team of PAs with which he was very happy, to his desire to socialise within the family and the wider community, and that it was essential that no changes were made to that team. Moreover there was consistent reference to the fact that, when alone, he was anxious, and sometimes panicked. He was still prone to low mood and depression; in the past he had taken anti-depressant medication and had had counselling. However in 2006 it was reported that after counselling, his mood had improved, and, over the course of this period, he had managed successfully to extend the period of time in the week which he spent alone, so that by 2008, he was spending two hours every day without a carer and on some days 4 hours.
2013 to 2014
Personal Budget Review 2013
- Four years later, in the Defendant's Personal Budget Review dated 17 July 2013, covering "direct payments + ILF", the Claimant was recorded as stating that there had been "no changes in my situation". The things recorded as being most important to him were stated as: "My independence and to be able to continue to employ a team of carers of my own choice" and "To be able to take part in family occasions and outings with the help of my carers". His personal outcome was stated as "To continue to live safely in my own home and to be able to employ carers who I choose". In response to the question: "What is working?" the answer given was "Team of six carers work various shifts in looking after Luke. To enable a carer to be available around the clock 24 hours" and "it is imperative to my wellbeing that no changes are made".
ILF Support Plan: 2014
- In an Independent Living Fund Support Plan dated around 28 January 2014, the ILF 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 and that the potential closure of the ILF was a particular concern for him. 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: January to April 2015
- On 27 January 2015, Ms Lovelock conducted a Social Care Assessment entitled "Overview Assessment" ("the January Assessment"). At this time it was known that ILF funding was going to go, but this assessment was done before the new regime came into force.
- The January Assessment 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 answer to question 5, the current breakdown of funding (total £1651) is recorded as being between the Defendant (£889), ILF and Health, Carers were being paid: £7 per hour weekday, £10.50 per hour weekends, £56.25 overnight; double time for bank holidays. In fact at that time, mileage costs were also paid and Sue and Cheryl received a higher hourly rate. In answer to question 6, there is a detailed summary of the Claimant's physical disabilities. In answer to question 8 addressing emotional wellbeing and mental health, it is stated:
"Luke depends on his family and carers for emotional support. He can become low in mood, tearful and extremely anxious when facing any change in his daily life, large or small and requires additional company and reassurance at such times ...
He does need assistance when making major decisions as these are stressful for him, not because he does not understand the issues involved. In recent years Luke has required counselling and has been prescribed anti-depressants to treat persistent low mood. Luke is dependent on sounds around him to orientate himself. In complete silence, Luke is inclined to withdraw and become speechless as his lack of perception/spatial awareness overwhelms him and he becomes fearful. This can manifest as a kind of panic attack. Luke has self-harmed by scratching at his skin in the past"
- Then 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 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)
As explained below this statement and in particular the underlined passage have assumed importance to some of the issues in the case.
- Under question 44 "Informal Carers" it is recorded that Mrs Davey did not want anything to change. Over 17 years she had built up an excellent team to support the Claimant and she "would be extremely concerned about the impact on his physical and emotional wellbeing if any routine altered in any way". This is clearly a record of Mrs Davey's own view.
- Section 3.1 sets out "Summary of Needs", listing (a) client needs (b) options discussed and (c) outcomes and actions required. As regards the client needs of "maintaining essential personal hygiene", "options discussed" are stated to include "continued PA support on 24 hour rota" and "live-in care " and "outcomes and actions required" are stated to include "24 hour care required" and "Request for additional funding to be made to the ILF Transition Panel. Decision about retaining current PAs or changing to live-in care depends on panel decision re amount of Personal Budget agreed".
- As regards live-in care, I make two observations on the January Assessment. First, in any event, it is clear that by January 2015, the option of live-in care was being considered by the Defendant. It also appears that at this time the Defendant accepted, or at the very least recognised, that the Claimant did not wish to have live-in care. But plainly the Defendant did not at that time rule it out. From the last passage above, there is a suggestion that at that time if additional funding was not forthcoming from the ILF transitional panel, there would be a switch to live-in care. In fact what happened was that in February 2015 the ILF transition panel awarded the Claimant £903 per week.
- Secondly, as regards the last passage quoted in paragraph 70 above, subsequently in her third witness statement, Ms Lovelock commented that whilst the first part of that passage was "my view", "the rest, from "but he feels" onwards" is my record of Mr Davey's views. It is not my view". She went on to say in this witness statement that live-in care would be a very positive option for the Claimant and that there are no significant risks attached to having live-in care.
The March 2015 OT Assessment
- Between 5 and 18 March 2015 Ms Collins carried out an Occupational Therapy Initial Assessment ("the March 2015 OT Assessment"). This was completed on the same standard form as the January 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". Then under question 23 addressing Safety and Risk, and in response to the question "What support you need to ensure you are safe" she recorded:
"with additional A/T support to call for help remotely Luke could feasibly be left alone for longer periods if his anxiety was addressed. However Luke could experience difficulty moving his self propelling wheelchair in a hurry, if there was a fire" (emphasis added)
- 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, back 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. In fact the contents of that assessment are, substantively, in identical terms to the January Assessment.
May to June 2015
- On 15 May 2015, the Defendant produced an updated draft support plan, which was in similar terms to that produced subsequently in October 2015 (see paragraphs 105 to 108 below). On 15 June 2015 the Claimant made a formal complaint to the Defendant.
Closure of ILF June 2015
- 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, on or around 3 July 2015 the Claimant was informed that his personal budget would be set at £950 (an increase over the offer made in February 2015) and was also provided with a decision in writing in the form of the updated support plan dated 15 May 2015. According to Ms Lovelock, this increased figure was due to an offer of higher bank holiday pay rates for PAs. 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.
Further OT Assessment process: July to October 2015
- 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 ("the September 2015 Assessment"). Its contents are described in detail in paragraphs 96 to 104 below.
- In October 2015 the decision to reduce the personal budget was confirmed. On 1 October 2015, Ms Lovelock and Ms Cook completed a fresh support plan ("the October 2015 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. The October 2015 Support Plan is described in detail in paragraphs 105 to 108 below.
- 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. As indicated below, the former envisaged a move from 24/7 care to visiting PAs. 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 the budget for those timings and how those timings and budgets 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 down to 17.5 hours from January 2016 onwards. The calculations were based on the following rates: £40 overnight; weekday £7 per hour; weekend £10.50 per hour and 27% on-costs. There would be no mileage costs and nothing additional for bank holiday work. (Although there is some evidence that the latter had been agreed earlier, in July).
- 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 was 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. In her witness evidence, Ms Lovelock stated that at that time there was some disagreement between Mrs Davey, who appeared to accept the latest proposals, and Sue Davey who was reluctant to do so. It was thus difficult to reach agreement. It was at this time that the shift to slots of time alone of no more than two hours each was raised and agreed.
- By letter dated 14 April 2016, this offer was rejected by the Defendant. As regards carers' terms and conditions, the Defendant 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.
- Proceedings were issued on 12 May 2016. On 8 June 2016 HH Judge Keyser QC granted permission to apply for judicial review, limited to grounds 1 to 4 and also made an order, by way of interim relief, that the Defendant make direct payments to the Claimant in the sum of £1224.25 per week, minus his assessed contribution.
- Substantial witness statement evidence has been filed and served, including: three witness statements from the Claimant himself, and a statement from Jasmine Davey. On the Defendant's part there are four witness statements from Ms Lovelock and a statement from Ms Last. A central part of Ms Lovelock's evidence is to the effect that spending more time alone would be beneficial for the Claimant and that live-in care was an affordable option for the Claimant.
Support plan review July 2016
- On 8 July 2016 Ms Lovelock completed a Support plan review for the Claimant, with his personal budget at that time being £1214. The review reported that the Claimant's family put forward a proposal involving the Claimant spending 4 hours alone each day and, in response to a specific question, the Claimant and Mrs Davey had not identified any additional risks to the Claimant's wellbeing from spending more time alone and that he would be choosing when those times were to take place. Further in the review, the Claimant is recorded as saying that he had got over his episode of depression and that he had never needed any help with anxiety management and that he felt very anxious "once in a blue moon as he had learned how to enjoy time alone". Further the Claimant declined offers of counselling and anxiety/panic management techniques available through his GP, preferring instead "to chat to his carers". Thus this suggested that by this stage he was adapting to the changes. That this is so is borne out by the Claimant's own evidence. In his second witness statement, he himself states that he has coped well with the extra two hours solitude per day and if time alone is limited to two hours then he finds it bearable, particularly in the knowledge that it is only for two hours.
(D) The September 2015 Assessment and the October 2015 Support Plan
The September 2015 Assessment
- The September 2015 Assessment is an updated OT assessment. Although again in a standard form, it was not the same form as that used for the January Assessment and the March OT Assessment. It comprised a first general section running to some 20 pages, with questions under a number of headings, then three pages setting out a "summary of your identified needs and outcomes you wish to achieve" and two final pages dealing with eligible needs and identified risks. The Summary of Needs section is in slightly different form from that in section 3.1 of the previous forms and has five columns, headed, respectively: "Area of Support", "Individual Needs", "Eligible" "Outcome you wish to achieve" and "Actions Required".
- On pages 1-2, it recorded 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 the heading "Your physical health and wellbeing" (rather than in the subsequent section "Your psychological health and wellbeing") Ms Collins records that "During the [March OT Assessment] Luke stated that he does experience some anxiety when left alone and had received some professional support". Then, as regards areas of risks around physical health and well-being, three items are mentioned:
"Occupational Therapy intervention can provide further trial of improved moving and handling equipment ... Assistive Technology could improve independence and wellbeing, and reassurance to Luke's family and Carers regarding movements within Luke's home. ... Referrals to Rehabilitation Teams ... for assessment to further maximise independence living at home".
The Claimant contends that this passage relates only to his physical safety.
- Then, under the heading "Your psychological well-being", the following is stated:
"Emotional well-being: Low/anxious once or twice a week
Other mental health issues: No
Sue reports Luke has had some contact with professionals in the past regarding anxiety he may experience when he is alone ..."
- Then, whilst neither box is ticked in answer to the question "Are there any areas of risk around your psychological health and well-being ....", in answer to the question "Details, including how risk is managed or action(s) required", the answer given is "See OT intervention above". This is a reference to the answer given to the same question under the Physical health section. This suggests that the view of the writer is that the OT and AT measures, referred to in paragraph 98 above, may also help with psychological issues.
- As regards toileting issues, the Assessment records that the Claimant is fully continent, is assisted to hold a urine bottle, so he can toilet whilst sitting in his chair. He often has little warning of his need to use the toilet to open his bowels and that this can happen at varying times of the day. Then in the Summary of Needs section, "using the toilet/managing continence" is recorded as an area of support, against which the "individual need" is recorded as "to improve safety for the transfer to toileting facilities" and "options for night management, if needed". No reference is made to dealing with toileting issues during the daytime.
- 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"
"A referral to Assistive Technology was discussed with Jasmine, who stated that she does not wish to have additional monitoring systems installed at present. Jasmine reported she currently has no concerns regarding Luke being able to call for help independently, if the need arose."
Then, under "Access to your property", it is stated:
"Assistive Technology would offer the reassurance of an alert system to Luke if his care support reduces to regular support, from 24 hour support"
The Defendant contends that this reassurance is an assurance as to emotional wellbeing. Further in the section "The support you need to ensure you stay safe", it is reported that "the Just Checking system was recommended to show how Luke's care needs change over each 24 hour period and to offer family reassurance about Luke's wellbeing and safety between carer visits." It was then recorded that Jasmine has declined a trial of this equipment, as they have "no concerns about Luke being able to call for help independently when left alone ..." Reference is then made to Mrs Davey referring to the Claimant's ability to operate a large-button push telephone to call for assistance and that Jasmine "has no concerns about Luke being left alone at home on a Tuesday afternoon". It is further stated:
"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"
- On the first page of the Summary of Needs section, the first "Area of Support" identified is "Being able to make use of your home environment safely", and against that column six different "Individual Needs" are identified, including:
"To improve Luke's independence in controlling his immediate environment; to independently operate his TV and media systems.
To provide the option for Luke to spend more time alone, safely, in his home, to develop his independence, and reduce anxiety"
The underlined sentence is at the heart of Grounds 1 and 2a of the challenge.
- It is then recorded, under the "Outcomes" and "Actions" columns that Jasmine and Sue declined the offer of a reablement assessment and use of A/T, stating "Luke is as independent as he wants to be currently."
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" (emphasis added)
- 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 list 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, against this risk is stated:
"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 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. It is quite clear from this that the £950 was the cost referable to PAs (ie not to live-in care). Reviews were to be "six weekly then annually".
(E) The Claimant's Grounds in more detail
- Whilst the case has been modified over the course of argument, the formal grounds of challenge are as follows:
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
In essence, the Claimant's challenge identifies two key problems said to arise from the September 2015 Assessment and the October 2015 Support Plan. First, the new assessments result in the Claimant being required to spend, every day, an increased amount of time alone (Grounds 1 and 2a-d). Secondly the new assessment provide for detrimental alterations in the working terms and conditions for the team of PAs who will provide care to the Claimant (Grounds 3 and 4).
- The Claimant's case in summary is that the assessments between 2004 and 2015 emphasised both the issue as to time spent alone and the importance of his team of carers. They showed the following, namely that:
(1) The Claimant was consistently found to need care to be available to him 24/7.
(2) There were consistently found to be concerns about anxiety and depression associated with being alone and this applied even when the Claimant was provided with alarms and was in fact safe.
(3) Over this period, the Claimant was gradually spending more time alone. He could manage two hours each day in the morning when in bed and then a further two hours on a Tuesday and on alternate Fridays. Nevertheless the Claimant found any change to his routine very anxiety provoking.
(4) He valued the variety of his carers and he did not want to move to a "live-in" care arrangement.
(5) He was happy and felt that his care arrangements allowed him to live as independently as possible within his own home, describing his carers are being "integral to his life".
(6) Therefore, his view of his own wellbeing was rooted in two issues: preserving his arrangements for care and avoiding unwanted or excessive time spent alone.
Other Options - Live-In Care
- At the heart of many of the contentions made by the Defendant is that the September 2015 Assessment and, in particular, the October 2015 Support Plan, were not limited to the provision of care and support to the Claimant through his existing team of PAs on a rota basis. The Defendant did not agree to commit to the cost of care provided through PAs. There are, and always have been, a number of options available to the Claimant and these were raised in the January Assessment and in the September 2015 Assessment. Those options could be met through the personal budget of £950 per week. Most particularly, the Defendant contends that these assessments included the option of meeting needs by way of live-in care. Support was paid by way of direct payments and it was for the Claimant to choose how to spend these funds. The Claimant has not been willing to consider these other options, including live-in care. Thus, the Personal Budget in the October 2015 Support Plan is not predicated on the Claimant having to spend more time alone as the Claimant alleges. The Defendant's statutory obligations are to assess needs and provide a budget capable of meeting needs. The Defendant did this. The social workers rationally formed the view that the budget of £950 is capable of meeting the assessed needs. The personal budget expressly provided that this could be done in either of the ways - by live-in care (p.4) or by PAs (p.7). Live-in care was sufficient to provide for his needs (and anything above that would be to meet the Claimant's wishes, and not needs).
- In response the Claimant contends that the Defendant in fact decided in the September 2015 Assessment and the October 2015 Support Plan that the Claimant's needs were to be met by the existing team of PAs (albeit with more time spent alone) and to fund that team. The Defendant is bound by that decision and it is no answer to a budget which was set in order to fund that team to suggest that the service user should make another choice as to how those needs should be met. That would require a new assessment and a new care and support plan and s.27(4) would apply. The live-in care option was considered and rejected in the October 2015 Support Plan. Even if not bound to meet the Claimant's needs by the funding of PAs, strong countervailing factors would have to have been identified before a decision was taken to meet his needs in a different way. None have been identified. Further the view of Ms Lovelock now expressed in her third witness statement (see paragraph 74 above) is surprising and represents a change of mind. The assessment record at the time is to be preferred.
- I prefer the Claimant's submissions on this issue. In my judgment, careful analysis of the September 2015 Assessment and, in particular, of the October 2015 Support Plan show, first, that the care plan and personal budget were predicated on the provision of care through a team of PAs and that live-in care was not an option open on the facts and was not the option chosen. The option chosen was the option of a team of PAs. Secondly, it is not an answer to say that if the funds in the personal budget do not meet the current team of carers option, then the Claimant can always go down the live-in care route instead. The reference to live-in care in Section 4 of the October 2015 Support Plan as an "other option
considered" is important. It supports the conclusion that the October 2015 Support Plan is predicated on support being provided by a team of PAs and not by way of live-in care. The content of Section 8 provides further support.
- It is certainly the case that the option of live-in care had been raised by the Defendant with the Claimant at least as early as in the January Assessment. The Claimant was consistently resistant to the idea, and in my judgment, the Defendant at that point recognised his concerns about such a change: see my observations in paragraph 73 above. Furthermore, this conclusion is consistent with the contemporaneous evidence of the Defendant's view of the risks associated with a move to live-in care, as explained further in paragraph 169 below. Whilst at that time there was a suggestion that, if additional funding was not forthcoming from the ILF transitional panel, there would be a switch to live-in care, in my judgment, even though the additional funding did not come through, the later October 2015 Support Plan and Personal Budget remained expressly based on the option of a team of PAs.
- This conclusion has the important consequence that the Defendant's contention, in respect of Grounds 1, 2c, 3 and 4, that neither the concern about spending time alone nor the terms and conditions offered to PAs matter, because the personal budget in the October 2015 Support Plan can be used in any event to meet the Claimant's needs by other routes, and in particular through live-in care, cannot be well founded. I now turn to consider each of the Grounds in turn.
Ground 1: time alone as a lawful need
The Claimant's case
- The Claimant contends that the decision that the Claimant has an eligible need to spend more time alone was not made in compliance with the statutory purpose of the Act. The relevant "need" which is challenged is the statement in the September 2015 Assessment "provide the option for Luke to spend more time alone, safely, in his home, to develop his independence, and reduce anxiety".
- The Claimant submits, first, that he did not want to spend more time alone and this was not an outcome he wished to achieve under s.9(4)(b); secondly, by concluding that it would be better for the Claimant to spend more time alone, in the face of his own very clear indication to the contrary, the Defendant was purporting to know the Claimant's needs better than he knows them himself and in this way the Defendant failed to have regard to the relevant considerations identified in section s.1(3)(a) and (d); and thirdly, there was no statement of how this was impacting on the Claimant's wellbeing (as set out in s.1(2)). Moreover it is not clear from the documents the basis upon which this need was found to be an eligible need under s.13 of the Act.
- Then, in the light of the Defendant's explanation, in its skeleton argument, of the "need" in terms of developing independence and reducing anxiety, the Claimant accepted that it is understandable that the need to tackle anxiety was assessed as a need. However, the Claimant then goes on to contend that, in fact, the Defendant did not accept that the Claimant experienced anxiety when left alone. Based on that contention, the Claimant submits that either (a) there was no need to spend further time alone at all, since, on the Defendant's own case, there was no anxiety arising from being alone which required addressing or (b) the risks of being alone had to be considered when deciding to increase the amount of time he spent alone and that risk had not been addressed by the Defendant at all.
- Since the Claimant's own positive case is that he does experience anxiety when left alone, then in my judgment, alternative (a) cannot be part of his case. That leaves alternative (b) and, therefore, in my judgment, the Claimant's case on Ground 1 in reality is subsumed within Ground 2a. (Indeed, for this reason, in oral argument the Claimant addressed Ground 2a first and in reply Ground 1 was not pressed).
The Defendant's case
- The Defendant submits, first, that the Claimant has not identified a legal basis for this challenge. Secondly, the relevant need to which spending more time alone is addressed is the need to "develop independence and reduce anxiety". Spending more time alone is the means of achieving that. The clear view of Ms Last and Ms Lovelock is that the Claimant has such a need and this will be developed by spending time without his carers present. Thirdly, it is the social worker's task to assess needs objectively. Fourthly, prior to the litigation, the Claimant had indicated that he liked to spend a certain amount of time alone and had wanted to develop his independence. Fifthly, in her witness statement, Ms Lovelock accepted that the Claimant does experience anxiety when left alone, but that she assessed that the need, and the way to reduce that anxiety, was to develop greater independence rather than a need never to be left alone. That was a social worker's assessment which could not be regarded as Wednesbury unreasonable and was a matter for her professional judgment. The social workers had given detailed reasons for their professional judgment.
- First, the correct approach to this issue is that the Claimant's wishes are no more than that and are not "needs"; those "wishes", whilst of significant importance, are not paramount. The duties upon the Defendant in ss.1(3)(a) and (d) are duties to "have regard". These duties are a starting point and did not prevent Ms Lovelock and Ms Collins from taking a different view as to the Claimant's needs, based on their objective professional judgment and experience.
- Secondly, it is now common ground that "developing independence" was a legitimate "need". In fact the need to develop independence and reducing anxiety had been identified as early as March 2015, by Ms Collins and by the Claimant himself (see paragraph 76 above). I find that the relevant statement referring to spending more time alone in the September 2015 Assessment (paragraph 103 above), is properly interpreted as identifying "developing independence and reducing anxiety" as the "need" and "spending more time alone" as the means of meeting that need.
- Thirdly, the facts concerning the Claimant's anxiety from spending time alone are as follows. It is clear that in the past being left alone has induced serious anxiety and panic attacks on the part of the Claimant, and that this arose substantially because of spatial disorientation connected with his very limited sight. Moreover as regards Assistive Technology, I accept the Claimant's contention that these facilities do not directly address the issue about anxiety arising from being alone (as recorded in the March 2015 Assessment: see paragraph 75 above). However I do take account of the view of Ms Last in her witness statement that this will help indirectly, by increasing independence and thus potentially reducing the anxiety of being alone.
- Whilst the Claimant had been prescribed anti-depressants and he had had some counselling, these were both some time ago. He has not been prescribed medication for anxiety and, apart from two specific occasions, in 2001 and 2007, he has not had to consult his GP in relation to anxiety arising from time alone. He has declined other offers of help. There is no other medical evidence relating to his anxiety and I accept the Defendant's contention that there is no evidence to support the conclusion that the Claimant is suffering from "mental illness".
- Furthermore, from the outset, and on his own account, the Claimant has enjoyed spending some time alone, and has been willing to spend a period of up to two hours alone (see paragraph 70 above). The concern and the anxiety arises if the Claimant spends long periods alone i.e. more than two hours. His own evidence in his first statement is that he did not wish to spend more than two hours alone at a time. It is the length of each particular period of solitude which is relevant, and not, necessarily, the total number of hours spent alone in a day. Thus once it became clear that, under the October 2015 Support Plan, the time with PAs and time alone could be allocated in such a way that the Claimant would never have to spend, in any one period, more than two hours alone, the concern of anxiety from time spent alone could be seen to be alleviated.
- Fourthly, and in any event, there is strong evidence that the Claimant's tolerance to periods of time spent alone has improved over time. Indeed by July 2016, the Claimant himself was reporting no problems arising from the increased time he was spending alone and that he had coped well with the extra time. He was anxious "only once in a blue moon": see paragraph 95 above.
- At first blush, there does seem to be something illogical in the Defendant's approach to this issue. If the aim is to reduce anxiety which arises from time spent alone, it seems counterintuitive to conclude that the Claimant needed to spend more time alone. This might be characterised in short hand as an "aversion approach". Two questions arise. First, did the Defendant's social workers genuinely believe in this aversion approach at the time? Secondly, if it was genuinely believed, was it nevertheless so illogical as to be Wednesbury irrational?
- As to the first of these questions, I am satisfied that Ms Lovelock and Ms Collins did genuinely believe both that developing the Claimant's independence was a need and that spending more time alone was a way in which to achieve this end: see paragraphs 120 and 122 above.
- As to the second question, I have concluded that the Defendant's approach was not Wednesbury unreasonable. First, as explained above, whilst undoubtedly the Claimant does suffer anxiety when spending long periods of time at a stretch alone, and whilst the Defendant does acknowledge this issue, on the evidence before the Court the Defendant's view that that anxiety was not severe, did not occur frequently and had not occurred more recently was one which it was entitled to hold on the material before it. Secondly, the view of Ms Lovelock that a way to reduce anxiety and to develop independence was to expose the Claimant to increased periods of time spent alone was a professional judgment of an experienced social worker and one which was not irrational. Indeed it is an approach the success of which appears to be borne out by subsequent events and by the Claimant's own evidence that he had increased his capacity and willingness to spend further periods of time alone, without experiencing the symptoms which he formerly experienced, some time ago now (see paragraph 95 above).
- Finally, the Defendant has made clear, in evidence, that if problems do arise from the overall increase in time spent alone on each day, it will revisit the issue.
Conclusion on Ground 1
- For these reasons I am satisfied that 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 and Ground 1 of the Claimant's challenge fails.
Ground 2a: risk to wellbeing of time alone
The Claimant's case
- As the argument developed, this ground became the heart of the Claimant's case arising from the concerns of being left alone. The Claimant contends that in the September 2015 Assessment and the October 2015 Support Plan, the Defendant failed to consider the risk to his psychological well-being which would arise from him spending more time alone (as was being proposed). That failure amounted to a failure to take account of a relevant consideration. Further, if it was taken into account, the Defendant failed to provide any reasons for dismissing that risk.
- The adverse impact of time alone had been well documented over the years and the proposed change in timings would clearly give rise to a risk to the Claimant's emotional wellbeing. The Defendant was required to take this into account by virtue of section 1(2)(b) of the Act. The risk had been identified in previous assessments and mentioned by the Claimant in the September 2015 Assessment itself. What was done was solely by way of a cross-reference to "OT intervention" (see paragraph 100 above). In that regard, neither assistive technology nor reference to rehabilitation teams addressed the issue of anxiety and panic. This is clear from the March Assessment. The Defendant accepts that the introduction of new technology had not been a factor in budget reduction. Most significantly, the risk section in the October 2015 Support Plan did not identify anxiety from being alone as a risk to be considered in the course of the plan, even though it had been identified in all previous assessments. Further the Defendant cannot rely on Ms Lovelock's evidence that the anxiety is not as serious as suggested by the Claimant's family, in circumstances where in relation to Ground 1 the Defendant accepts that he does experience such anxiety.
The Defendant's case
- The Defendant submits that this ground has no basis in law; it is a pure "merits" challenge. The effect on psychological health of increased time alone is not a "statutory" relevant consideration falling within s.1(3)(c). The approach of the social workers and the occupational therapist was plainly rational and not arguably Wednesbury unreasonable. There is no breach of the s.1(2); it does not impose a "have regard" duty. Further not every fact bearing on mental health is a statutory relevant consideration.
- On the facts, the issue had been identified in earlier assessments, but the risk was not high. In summary, the social worker did consider the Claimant's psychological wellbeing and reached the view that the anxiety was not outside the normal range and did not warrant a fuller risk assessment. Ultimately the Defendant's officers carefully considered the Claimant's wellbeing and did consider the Claimant's reported anxiety. Having considered those statements and the objective evidence, the social worker decided that it did not warrant further investigation. This was a professional judgment by the Defendant's social worker which was not irrational. As regards the September 2015 Assessment itself and the reference back to "OT intervention", assistive technology is relevant not only to physical safety, but also to psychological wellbeing. If the Claimant is made physically safer, he will feel safer and anxiety will reduce. In any event it is quite wrong to subject these passages to a fine grain analysis: see Ireneschild, supra.
- First, in my judgment, even if the matters specified in s.1(2) of the Act are not "statutory" relevant considerations (see paragraph 53 above,) nevertheless the Claimant's emotional and psychological health and wellbeing are factors which are so obviously material that a failure to take them into account would constitute grounds to vitiate any relevant decision. Further, the Defendant is under a distinct duty to promote these matters under s.1(1) and (2).
- Secondly, as to the question of whether the Defendant did take account of the risk to the Claimant's psychological well being of increased time spent alone, it is the case that there is no express reference to such a risk in the October 2015 Support Plan. However it is inherent in the "aversion approach" of seeking to reduce anxiety by confronting the issue and increasing time spent alone, that in the course of that process, the Claimant might in the interim experience the very anxiety which the approach was seeking to eliminate or at least reduce. In my judgment, it is also inherent in that approach, that the Defendant was aware of such a risk.
- Thirdly the relevant evidence before the Court is that of Ms Lovelock in her second and third witness statements. She referred to her own extensive experience in acute and enduring mental health assessment and the management of individuals in community settings. In my judgment, this evidence is admissible as to what the Defendant did consider at the time in relation to any risk arising from time spent alone, and, if and in so far as the Claimant's challenge is based on a failure to give reasons, then on the basis of the approach in KM (see paragraph 61 above), I consider that the evidence is admissible in this way too. Ms Lovelock is not only an experienced social worker, but has specific experience in mental health issues. Her conclusion in relation to the risks to psychological wellbeing are those of a professional.
- Ms Lovelock's evidence here is detailed and considered. In summary, she did not consider that the reported historic concern about the Claimant's anxiety from being alone was sufficiently significant to require a fuller assessment of risk. Her opinion was that the Claimant's anxieties were not outside the normal range. She was monitoring the situation closely and believed that the statements about the effects of being alone were reactive, rather than a real indication of what was likely to happen. The Claimant had been observed by professionals on many occasions and had displayed calm and rational behaviour. In the OT assessments over a two year period, there was supporting evidence that the Claimant's mental health and wellbeing were continuously considered and assessed as stable. The September 2015 Assessment both records some anxiety when alone but also that the Claimant liked to spend some time away from his carers. The recorded comments about anxiety when alone are reports of the Claimant's views and not a medical diagnosis or assessment by the social workers. She added that apart from the two relatively short lived episodes in 2001 and 2007, there had been no recurrence of anxiety and no other mental health issues had been reported to the Defendant, his GP nor any other professional. In the course of working with the Claimant to adjust to the changes, there had been no report of anxiety to his GP. She concludes that:
"Having assessed his mental health needs holistically, the risks identified are not significant enough to warrant further intervention, other than those strategies which are already in place."
- On the basis of this evidence, she and Ms Collins did take account of the possible risks to the Claimant's psychological wellbeing arising from increased periods of time spent alone. In my judgment, there was certainly material upon which she could reasonably conclude that the risk of anxiety from spending time alone was, and is, not as great as the Claimant was (or perhaps still is) suggesting. Her conclusion was supported by, in particular, the facts that there had been no referral for medical treatment for at least 8 years; that the Claimant himself sought to spend some time alone; that, over time, and since 2006, he had spent increasing periods of time alone and that the Claimant was stable. Her opinion was that the Claimant had, at times, sought to exaggerate his concerns, not least by describing his symptoms as mental illness, in circumstances where in her opinion, that was not justified. In my judgment, her conclusion (stated in paragraph 139 above) was based on consideration of relevant factors and was not, in my judgment, Wednesbury unreasonable.
- However, in addition to the Defendant's conclusion that such a risk was limited and manageable, two other factors fall to be borne in mind. First, the increase in time spent alone was to be "tapered" over the period of 6 months from October 2015 to May 2016 - the reduction in time spent with PAs was to be gradual. Secondly, as the Defendant makes clear, the situation would be constantly monitored, such that if problems arise the Care Plan could be revisited.
Conclusion on Ground 2a
- For these reasons I am satisfied that the Defendant did not fail to consider the risk to the Claimant's psychological wellbeing arising from having to spend more time alone and thus there was no breach of s.1(2)(b) or other unlawful act. Ground 2a of the Claimant's challenge fails.
Ground 2b: Toileting needs
The Claimant's case
- Here, the Claimant's original ground was that the September 2015 Assessment failed to consider the fact that the Claimant cannot attend to his toileting needs without assistance and thus failed to consider that, if the Claimant is left alone for more than two hours at a time, there was a risk to the Claimant's dignity. As this was part of his wellbeing under s.1(2)(a) it fell to be considered under s.9(4)(a) and/or s.27(2)(a) and /or the Claimant was in breach of the duty to have regard to matters in subsection (a) of section 1(3). However by the time of the hearing the Claimant accepted that the Defendant's response to this ground that the proposed increased time alone could be organised into three separate periods of two hours, meant that this ground fell away as a distinct ground for challenge, but that the Defendant's response fell foul of Ground 2c.
- However in oral argument, the Claimant, in addition, contested the Defendant's case subsequently made in witness evidence that the evidence relating to the Claimant's continence was contradictory. First, there were no difficulties when out on community activity, because he takes a bottle with him. Secondly, there has never been any problem with night time incontinence and the issue here is his toileting needs during the day time. This issue was simply not considered at the time, despite the production of suggested timings in October 2015 and May 2016.
The Defendant's case
- The Defendant contends that this is again a merits challenge. It is far from clear what decision was being challenged or the legal basis for any such challenge. The Claimant is fully continent and does not need assistance every two hours. In any event, he can have a carer visit every two hours. Finally, the social worker and the occupational therapist gave prior consideration to the Claimant's toileting needs.
Analysis and Conclusion
- In my judgment, the original ground of challenge here has indeed fallen away, as a result of the Claimant accepting that the problem with attending to the Claimant's toileting needs would be met by organising the proposed daily period of 6 hours alone into three separate periods of two hours and thus meeting the need for assistance with toileting every two hours. The effect, if any, of that arrangement upon the Claimant's social activities is the subject of Ground 2c, to which I now turn.
Ground 2c: social activities
The Claimant's case
- The Claimant contends that the suggested timings for the PAs to work for brief periods to ensure that the Claimant is not alone for more than two hours at a time will prevent him from engaging in social activities which are very important to his wellbeing. In particular there will be insufficient time to enable a PA to assist the Claimant to prepare and travel to and from the local town and day trips would be out of the question. Thus the Claimant would have to reduce massively his social activities, in breach of s.1 of the Act and Article 19 UNCRPD, as referred to in paragraphs 1.18 and 1.19 of the Guidance. The September 2015 Assessment clearly recognises the Claimant's social activities and his need for support in that regard, but fails to address the risk to those activities, if the hours of being left alone are split. Unidentified unpaid care is not a suitable substitute. The Defendant's suggestions now made in evidence were not considered in the assessments or the October 2015 Support Plan and no consideration was given as to how his choices were set to change.
The Defendant's case
- The Defendant submits, first, that the allegation made is not clear and in any event there is no basis in law for any such challenge. (The reliance upon the UNCRPD is misconceived, as it gives rise to no independent legal obligation.) The Claimant's case here has changed. Secondly, the Claimant can continue to engage with the community with visits to the local community centre, to the cinema, to the local town with carers and day trips. The issue was properly considered in the September 2015 Assessment, as well as in the January Assessment, recognising that the Claimant needs supervision in unfamiliar environments, that his property is fairly isolated and that his carers accompany him to local activities. The activities there identified - going to the shop, out for meals and to the pub - can all continue. Thirdly, there is a wide range of activities which the Claimant can engage in within the proposed budget. Day trips are possible if accompanied by a volunteer. Finally, if he wanted more flexibility, he could choose to have a live-in carer.
- 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.
- 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.
- 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.
- 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 then two hours at a time alone, thus raising the concerns about anxiety from such extended periods of solitude.
- 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. Article 19 UNCRPD does not impose any additional obligation upon the Defendant, beyond those arising under the Act: see paragraph 49 above.
- Moreover it is clear on the evidence that the Defendant did take account of the effect of the Personal Budget, and 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.
Conclusion on Ground 2c
- For these reasons I am satisfied that the Defendant did not fail to consider the effect of spending periods of time alone upon the Claimant's ability to engage in social activities and thus there was no breach of s.1 of the Act or other unlawful act. Ground 2c of the Claimant's challenge fails.
Ground 2d: failure to reach agreement
The Claimant's case
- The Claimant submits that there was a need to take account of the Claimant's wishes and feelings and to agree how his needs are to be met. The Defendant was attempting to change the way in which it would meet the Claimant's needs under s.27(4) of the Act, and thus s.27(5) applied. In breach of its duty under s.27(5), the Defendant failed to take all reasonable steps to reach agreement with the Claimant about how it should meet his needs. The Defendant has not engaged with the Claimant's wish to avoid more time spent alone nor with his representations regarding the practicalities of adjusting his care plan to meet the reduced budget. In this regard, the Claimant has compromised, but the Defendant has not. This was exemplified by the Defendant's approach to the increase in the minimum wage in April 2016.
The Defendant's case
- The Defendant contends that it did take all reasonable steps to reach agreement with the Claimant, his family and carers. In fact, the Claimant increasingly refused to engage with the Defendant and ultimately preferred to take the route of legal challenge, as recorded in an internal email dated 3 September 2015. In July 2015 the budget was raised from £903 to £950. Moreover, the Claimant has not identified what further "reasonable step" the Defendant should have taken.
- First, the obligation upon the Defendant in s.27(5) is not an obligation "to reach agreement" at any cost. Rather it is an obligation to "take reasonable steps to reach agreement".
- Secondly, it is the case that the Claimant did, some months after the impugned decisions, agree to a reduction in the budget to £1224. Nevertheless I also accept that the Claimant has, from the outset, taken what might be described as a "legal" approach to the issues, taking legal advice and resorting to legal procedures from an early stage. This is not a criticism; it is a course which he was entitled to take. However, at times it may have made reaching agreement with the Defendant more difficult.
- Thirdly, over the relevant period there was a considerable amount of engagement between the Claimant and the Defendant's social workers and occupational therapists. In this regard, Ms Lovelock sets out in her second witness statement the detail of the numerous meetings and exchanges between February 2015 and May 2016. In her witness statement, Ms Last describes this extensive period of assessment as lasting over 6 months and as such very unusual. The changes following the closure of the ILF were difficult for all service users to adjust to.
- In my judgment, the Defendant did put a very substantial amount of effort, over an extended period of time, to seek to assuage the concerns of the Claimant and his mother. Whilst it was appropriate for the Claimant to resort to legal advice, judicial review proceedings and other avenues of potential redress, in these circumstances and given the extended contact, it is impossible to conclude that the Defendant has breached its duty to take all reasonable steps to reach agreement. The Claimant has not identified any particular step, short of agreeing to the Claimant's position, that the Defendant ought to have taken.
Conclusion on Ground 2d
- For these reasons, the Defendant did not fail 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 2d of the challenge fails.
Ground 3: risk to existing team of PAs
The Claimant's case
- 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 of PAs over more than 17 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. There is no evidence that at the time the Defendant did consider the effect of the changed conditions upon the existing team and thus upon the Claimant's wellbeing. In failing to consider that risk, the Defendant has breached its duty under s.1(3)(d) to have regard to "all the individual circumstances" of the Claimant. In particular, the Claimant relies upon the clear statements in the January and April Assessments. This cannot be affected by the subsequent explanation of Ms Lovelock in her witness statement that he was not dependent upon his team of carers, and if that is now her belief, it is entirely unreasonable. The conclusion that it would be positive to change the team is quite inconsistent with the finding in the assessment itself that a change of team would pose a significant risk. It is no answer to suggest that care is available in the area for lesser amounts, since general agency staff will not provide the benefits which the existing team provides. Further the fact that the team has stayed to date is a consequence only of the grant of interim relief and Mrs Davey making up the shortfall in funding.
The Defendant's case
- The Defendant submits that the Claimant has misunderstood the duty in s.1(3)(d). The Defendant is not required, when conducting the assessment to have regard to "all the individual circumstances". Rather the Defendant must have regard to the need to put in place procedures that have regard to individual circumstances, rather than providing support based on assumptions made on the grounds of age or condition. Each individual circumstance is not a "statutory relevant consideration". There can only be unlawfulness here, if the Defendant did not have regard to the risk of the PAs leaving and that it was Wednesbury unreasonable for them not to have done so.
- There is no evidence that the team of carers will substantially change as a result of the Defendant's decision and the Defendant is not required to guess about what might happen in the future. In any event, the Defendant did consider the position if the carers left, but in fact took the view that a change in his existing team would be positive for the Claimant. The existing team was inhibiting his independence. The statement in the January Assessment was merely recording the Claimant's own view and not that of the Defendant: see paragraph 74 above. Ms Lovelock's evidence is that the Claimant needs to adapt to change. The existing team is not a need, it is just something which the Claimant likes.
- Accordingly, the Defendant did consider and have regard to the Claimant's individual circumstances to the extent required and was well aware of those circumstances.
- First, the duty under s.1(3)(d) is to "have regard to the need to ensure that decisions about the individual are made having regard to all the individual's circumstances". In my judgment, the point sought to be made by the Defendant here is a distinction of no substance. Even though there is a double "have regard" in the wording, the essence of s.1(3)(d) is a duty, when taking decisions, to have regard to each person's particular individual circumstances and not to make generalised assumptions based on characteristics such as age, physical condition etc. This is made clear in paragraph 1.10 of the Guidance.
- Secondly, the assessments in 2015 record consistently the Claimant's own view of the importance to him of retaining his then existing team of PAs. The view of the Claimant himself is certainly recorded: see paragraph 67 above. The January Assessment further records:
"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"
- 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 (see paragraph 74 above), 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.
- As regards the alleged failure to consider the effect of a change in the team of PAs, it is important to note that the express statutory consideration is to have regard to "all" the Claimant's "individual circumstances". There is no specific duty to consider specifically the risk to the Claimant's mental health and wellbeing arising from a change in the team of PAs, if the Defendant in fact concludes that that risk does not in fact arise.
- 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. Secondly, 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) and paragraph 57 above.
- 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.
Conclusion on Ground 3
- For these reasons, in my judgment, 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's circumstances and thus acted in compliance with its duty under s.1(3)(d) of the Act. Ground 3 of the challenge fails.
Ground 4: Failure to evidence rates for PAs
The Claimant's case
- Here, the Claimant contends that the Defendant has failed to evidence its contention that the rates offered are reasonable or compatible with its obligations under the Act. Because the Defendant cannot show that the reduced rates are competitive, it is not able to demonstrate that it was or would be unreasonable for the Claimant's existing PAs to refuse to accept them. Paragraph 11.25 of the Guidance requires consideration of the rates of pay of the PAs when considering the adequacy of a personal budget, which, in the present case, in terms is designed to fund existing PAs.
- There is insufficient evidence that the rates of £7.20 per hour (and £9 at the weekend) are adequate to meet the cost of paying skilled experienced PAs to replace the existing team. These are not the "going rates" and the rates offered contradict the rates in the Defendant's own published guide. Those published rates are net of "staff costs".
- Secondly, the Claimant's own inquiries indicate that local agency staff require well above the minimum wage. There is no evidence that any agency in the area will pay, or that any PA will accept, only the minimum wage. Whilst it is the case that five of the existing carers are paid the minimum wage, they receive in addition benefits which will not be available, namely weekend rates, bank holiday rates and mileage. One PA has left and another has reduced hours, but a replacement has been found. Accordingly the personal budget is not adequate.
The Defendant's case
- The Defendant contends, first, that there is no proper legal basis for this challenge - there is no obligation to provide evidence to show that rates are reasonable. Secondly, it submits that because there are other options, other than a team of PAs, (such as live-in care) by which the Claimant's needs can be met, it is not necessary to get into the issue of hourly rates. Thirdly, the evidence of the Defendant's experienced social worker is that the rates, in the Plan as modified, are sufficient to recruit carers to provide regular visiting care. The personal budget is not to cover mileage costs for PAs travel costs to and from work and this is consistent with the Oxfordshire Guide.
- First, as concluded above, the purpose of the Personal Budget in the October 2015 Support Plan is a budget to cover the cost of a team of PAs. In this regard, whether alternative live-in care could be paid for within this budget is not relevant.
- Secondly, under paragraph 11.25 of the Guidance, the adequacy of the rates of pay of the PAs is a relevant consideration which the Defendant was required to take into account in setting the personal budget.
- Thirdly, the Defendant's position on the rates of £7.20 and £9 and whether they are adequate has not been consistent. Certainly the Defendant's initial case about the rates in the Oxfordshire Guide did not make sense. The rates in the Guide do not include staff "on costs", as initially suggested, since if they did, that would have taken those rates below the national minimum wage. It is also the case that the rates being offered in the personal budget fall below the £8.50 suggested in the Oxfordshire Guide.
- However, in my judgment, the Claimant has not established its 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. I note that in her evidence, Ms Lovelock has not responded to the Claimant's evidence about rates paid to local agency staff. However the Defendant does not rely positively on the ability to recruit local agency carers. 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 or up to £8 per hour. She also provides a cogent explanation why the Claimant's evidence of a lack of response to his own recent advert for carers, does not establish that it is difficult to recruit.
- 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.
- 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.
Conclusion on Ground 4
- For these reasons, the Claimant has not established that 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. Ground 4 of the challenge fails.
- The task of this Court is to determine whether the Defendant has acted unlawfully, by reference to established criteria for assessing lawfulness of the conduct of the local authority in the field of adult social care. It is understandable that the Claimant, Mrs Davey and other members of his family have objected to the updated needs assessment, which has resulted in a substantial reduction in the personal budget he previously enjoyed and the Court has great respect for the manner in which the Claimant and his family cope with his difficult situation. The result may impose change or even strictures upon the Claimant which are unwelcome, but that does not of themselves mean that the process has been unlawful.
- In considering this challenge, I have identified no relevant legal error which warrants this Court in interfering with, or granting relief in respect of, the Defendant's decision. The Defendant and their social workers have put much effort into addressing the issues raised by the Claimant over the period of assessment.
- In the light of my conclusions at paragraphs 131, 142, 146, 155, 162, 173 and 184 the Claimant has not established any of his grounds of challenge and accordingly this application for judicial review is dismissed.
- I will hear submissions as to the appropriate orders to be made consequential upon these conclusions. I propose dealing with consequential matters immediately following the handing down of this judgment, unless either party requests that they be dealt with subsequently and in which event, I will give further directions as to the procedure to be followed, including for the service of written submissions.
- Finally I am grateful to all counsel for the assistance that they have provided to the Court in the presentation of oral and written argument in this matter.