PQ AS ATTORNEY OF MRS Q v GLASGOW CITY COUNCIL [2016] ScotCS CSOH_137 (05 October 2016)

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Cite as: [2016] ScotCS CSOH_137

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OUTER HOUSE, COURT OF SESSION

[2016] CSOH 137

P1327/15 & P1412/15

OPINION OF LORD BOYD OF DUNCANSBY

In the cause

PQ AS ATTORNEY OF MRS Q

Petitioner

against

GLASGOW CITY COUNCIL

Respondents

Petitioner:  Mitchell QC, Crawford; Drummond Miller LLP

Respondents:  Poole QC; Glasgow City Council (Corporate Services)

5 October 2016

[1]        This opinion relates to two petitions with the same petitioner and respondent.  Both concern the duties of the respondent to an elderly lady, Mrs Q.  The petitioner is her son who acts on her behalf under a power of attorney.  The respondent is Glasgow City Council.  At the heart of the dispute is whether the respondent is required to pay for 24 hour one‑to‑one care at home or whether Mrs Q’s needs could be provided for in a nursing home.

 

The Facts
[2]        Mrs Q is an 86 year old widow who lives in Glasgow.  She is in poor health.  She suffers from peripheral vascular disease and vascular dementia.  By the early part of 2010 Mrs Q was living at home with support from Cordia Care organised through the Council’s social work department.  She found it increasingly difficult to cope even with the care package put in place for her.  Accordingly the respondent commissioned an assessment of her care needs.  It is dated 19 March 2010.  The report noted that Mrs Q

“now requires 24 hour care to reduce the risk of falling and ensure that she receives an appropriate level of care. She is currently supported overnight by care purchased privately. This cannot be sustained indefinitely due to financial implications and placement in nursing care is required urgently.”

 

Following that report Mrs Q was admitted to Glenlivet nursing home on 28 April 2010.  As a result of the deterioration in her vascular problems Mrs Q was admitted to hospital on 17 May 2010 where she underwent a below knee amputation.  She returned to the nursing home on 24 June 2010.  She returned to her own home for what was intended to be a short break on 25 July 2010 but has continued to reside there ever since.  On 11 August 2010 the Director of Glenlivet nursing home gave notice of termination of the contract for her placement there.  The circumstances which led up to the giving of the notice by the Director are a matter, if not of dispute, certainly of some controversy.  In short Mrs Q’s family were dissatisfied with the level of care for Mrs Q and made numerous complaints.  As a result, in the Director’s view the placement became unworkable and was terminated.  I will return to this matter later.

[3]        Shortly after Mrs Q’s return home a standardised shareable assessment (an assessment under section 12A of the Social Work (Scotland) Act (the1968 Act)) was carried out by the respondent.  It is dated 26 August 2010 and 23 September 2010 (the August 2010 assessment).  Thereafter the petitioner applied on Mrs Q’s behalf for a direct payment under section 12B of the 1968 Act.  It is not clear from the petition and answers when payments commenced.  The respondent avers that direct payments were made with effect from September 2010.  That appears to be denied.  What is not in dispute is that up to 1 November 2012 direct payments of £594.70 were made to the petitioner.  Following a review these payments were reduced to £493.36 per week.  The difference represents the assessed client contribution which initially had been waived on a discretionary basis but was deducted from the direct payment from 1 November 2012.

[4]        For reasons, some of which are expanded upon below, the petitioner was dissatisfied with the levels of payments.  Accordingly he pursued a complaint under the respondent’s complaints procedure.  This resulted in a hearing before the respondent’s Social Work Complaints Review Committee on 23 January 2015.  The petitioner was represented by Senior Counsel.  Evidence was led from the petitioner and from Sally-Ann Dickinson and Professor Lynn Kilbride, both of whom produced reports which are founded upon in these petitions.  The petitioner’s complaints were not upheld.

[5]        A further support need assessment under section 12A of the Act was carried out on 5 May 2015 (the 2015 assessment).  Following that assessment the Council determined the level of direct payment at £594.70 per week with a client contribution of £101.34 making a direct payment of £493.36.  It will be seen that these amounts are the same as before the 2015 assessment.

 

The First Petition
[6]        The first petition seeks a declarator that in respect of the needs assessment dated 26 August 2010 the respondent has failed to perform its statutory duty towards Mrs Q under section 12B of the Act.  It further seeks a declarator that the respondent failed to discharge its statutory duty in respect of decisions dated 1 October 2010, and for reduction thereof.  The reference to a decision on 1 October 2010 appears to be a reference to a letter in which the Council notified the petitioner that they would pay Mrs Q the sum of £427.47 per week, a sum that was subsequently varied.  Finally the petitioner seeks damages in respect of the alleged breach of statutory duty.

[7]        I shall dismiss the first petition.  The 2010 assessment has been overtaken by the 2015 assessment.  The purpose of the first petition appears to have been twofold; first, to give a picture of the dispute between the parties which has gone on for some time.  So far as relevant that could well have been done in the second petition.  More pertinently the petition also seeks damages for breach of statutory duty.  Mr Mitchell informed me that he no longer insists in this remedy.  Accordingly I consider that the first petition is wholly academic.  This court has repeatedly made clear that it will not adjudicate on disputes that have no live issue.  The live dispute between the parties is whether in the 2015 assessment the respondent has properly discharged their duties to Mrs Q.

 

The Second Petition
[8]        So far as now relevant the petitioner seeks the following remedies:

“(a)    Declarator that the Respondent, in respect of the Support Needs Assessment of 5th May, 2015 has failed to perform its statutory duty towards [Mrs Q] under Section 12A of the Social Work (Scotland) Act 1968;

(b)     Production and reduction of the said Support Needs Assessment; 

(c)     i) in the event of decree of declarator and reduction being pronounced in respect of the Support Needs Assessment of 5th May, 2015, for declarator that the Respondent has failed to perform its statutory duty towards [Mrs Q] under s12B of the Social Work (Scotland) Act 1968 et separatim, and in the event of declarator and reduction not being so pronounced, (ii) for declarator that the Respondent has failed to perform its statutory duty towards [Mrs Q] under Sections 4 and 5 of the Social Care (Self-directed Support) (Scotland) Act 2013;”

 

Further orders in respect of the respondent’s handling of the complaints procedure and for damages for breach of statutory duty are no longer insisted upon.

[9]        I intend to deal with the issues in 2 parts.  The first deals with the case against the Council for alleged failings in the assessment exercise ie the case under section 12 of the 1968 Act.  These support the remedies sought in (a) and (b).  The second part deals with the remedy sought under (c).  As can be seen alternative remedies are sought dependent on whether or not the court grants declarator and reduction of the 2015 assessment.

 

Section 12A of the 1968 Act
[10]      Section 12A(1) of the 1968 Act is in the following terms:

12A.  Duty of local authority to assess needs.

(1) Subject to the provisions of this section, where it appears to a local authority that any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services may be in need of any such services, the authority—

(a) shall make an assessment of the needs of that person for those services; and

(b) shall then decide, having regard to the results of that assessment, and taking account—

(i) where it appears to them that a person (“the carer”) provides a substantial amount of care on a regular basis for that person, of such care as is being so provided; and

(ii) in so far as it is reasonable and practicable to do so, both of the views of the person whose needs are being assessed and of the views of the carer (provided that, in either case, there is a wish, or as the case may be a capacity, to express a view),

whether the needs of the person being assessed call for the provision of any such services

 

The dispute between the parties
[11]      As I indicated above the issue between the parties is whether Mrs Q requires what is called one-to-one 24 hour care to be provided in her own home or whether her needs could be adequately met within a nursing home.  The petitioner’s position is that because Mrs Q is constantly at risk of falling she requires to be cared for at home with 24 hour care.  Because of her dementia she forgets that she has had a leg amputated.  Accordingly when she rises to get to her feet she fails to take account of that fact and is prone to falling and injuring herself.  She may also try and rise from bed and again is at risk of falling.  No nursing home it is said will provide the kind of 24 hour one-to-one care that is required and accordingly she can only be cared for in a home setting with a nurse or carer with her 24 hours a day.

[12]      The respondent maintains that it has fulfilled its statutory duties.  The assessment that Mrs Q’s needs could be met by 24 hour care within a residential nursing home was within the range of decisions open to a reasonable decision maker.

[13]      Both parties submitted written notes of argument.  I regard it as unnecessary to set out the submissions in full. I record what I regard as the salient points.

 

Submissions for Petitioner
[14]      The petitioner accepts that the respondent is entitled to exercise its discretion in performing its statutory duties.  However he maintains that on any reasonable exercise of that discretion the amount of direct payment should not be less than the cost of home care provided to Mrs Q.  So far as the 2015 assessment is concerned the respondent failed to discharge its duties under section 12A and the conclusions were illogical, irrational and unreasonable.  The assessment failed to take into account a substantial body of evidence including expert reports and anecdotal evidence from Mrs Q’s time at Glenlivet Nursing Home and the evidence of her unique condition to the effect that Mrs Q required one-to-one care.  The assessment failed to take into account the views of the family, or at least failed to give them sufficient weight.  Esto the assessment did have regard to such evidence then the decision was outwith the range of decisions which a reasonable decision maker would have made.  Authority for these propositions was to be found in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 and Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374.

 

Submissions for Respondent
[15]      In both her written and oral submissions Ms Poole QC took me through the governing law and case law which demonstrated the way in which courts had interpreted the obligations on local authorities under the 1968 Act and its English equivalent.  I do not record these submissions since the issue before me is essentially one of Wednesbury unreasonableness as outlined in the petitioner’s submissions.  I have incorporated her observations on the factual material in my discussion of the evidence below.  In essence the respondents submit that they have complied with their statutory obligations and that the 2015 assessment is neither unreasonable nor perverse.

 

Discussion
[16]      It is worth at the outset recalling a number of fundamental principles which guide the court in the judicial review of such decisions.  First it is not for the court to take a decision which Parliament has empowered to a local authority.  It is only if the local authority has acted outwith its powers, failed to take into account a relevant matter, omitted to take into account a relevant matter or the decision was Wednesbury unreasonable that the court can intervene.  Even if there has been an error in law it will be for the local authority to remake the decision, possibly under the guidance of the court, not for the court to remake it.

[17]      Secondly local authorities have finite resources and the court has to recognise that it is for the local authority to determine where resources should be spent and in what manner.  In R(G) V Barnet LBC 2004 2 AC 208 Lord Nicholls of Birkenhead drew a distinction between a local authority exercising a power and one exercising a duty.  A local authority is obliged to comply with a statutory duty regardless of whether, left to itself, it would prefer to spend its money on some other purpose.  A power need not be exercised but a duty must be discharged (para 12).  The extent to which a duty precludes a local authority from ordering expenditure priorities for itself varies from one duty to the other.  This is especially so in the field of social welfare.

“As a general proposition the more specific and precise the duty the more readily the statute may be interpreted as imposing an obligation of an absolute character. Conversely, the broader and more general the terms of the duty, the more readily the statute may be construed as affording scope for a local authority to take into account matters such as cost when deciding how best to perform the duty in its own area.”(para 13).

 

Thirdly courts require to exercise particular care in construing reasoned decisions which are not drafted by lawyers and read them in the context within which they are made. In the case of assessments the observations of Lord Dyson JSC in R(Macdonald) v Kensington and Chelsea Royal London Borough Council [2011] UKSC 33, at paragraph 53, are particularly apt:

“In construing assessments and care plan reviews, it should not be overlooked that these are documents that are usually drafted by social workers. They are not drafted by lawyers, nor should they be. They should be construed in a practical way against the factual background in which they are written with the aim of seeking to discover the substance of their true meaning.”

 

[18]      There is no doubt that Mrs Q is exceptionally well cared for at present.  She lives in a one bedroom bungalow which has been adapted to take a wheelchair.  There is a wet room for her washing and toileting needs and she can be discreetly observed.  There is a carer on hand 24 hours a day who is not distracted by other clients or patients.  During the night I am told the carer sleeps in pull down bed in the living room.  She is happy, content and safe.  She is recorded as not wishing to move from her home.  On any view Mrs Q at present enjoys a very high level of care.  One can well understand the concern of the petitioner to ensure, so far as he can, that his mother should be able to continue with this level of care in accordance with the wishes of both the family and Mrs Q.  That however is not the test.  While the wishes of the supported person and carer are important elements in the exercise (see below) the task of the respondent in assessing her needs is set out in its obligations under the 1968 Act.

[19]      Against that background I turn to consider the terms of the 2015 assessment.  It was carried out by an experienced social worker who, I was informed is also qualified as a nurse.  She was assisted by an occupational therapist and a district nurse.  There was ongoing discussion with the petitioner and his sister.  Mrs Q was visited in her home on three occasions through the process.  The support needs assessment was followed by an outcome based support plan and resource allocation.

[20]      The assessor was provided by the petitioner with a number of expert reports.  These are referred to in the assessment.  First, I was referred to a report from Grace Consulting dated 10 May 2011.  I was informed that this was before the assessor though that does not appear to be the case from the assessment which refers to one dated 18 June 2013.  That report nevertheless repeated much of what was in the earlier report.  The second was a report from Sally-Ann Dickinson dated 12 January 2015.  Ms Dickinson is a registered general nurse with expertise in, amongst others, care of the elderly.  She is strongly supportive of the petitioner’s position that what is required is 24 hour one-to-one care in Mrs Q’s own home.  The final report that was before the assessor was a report from Professor Lynn Kilbride, Head of the Department of Nursing and Community Health at Glasgow Caledonian University dated 13 January 2015.

[21]      The first criticism of the 2015 assessment is that it is inconsistent with the assessment made in 2010.  Having read the 2010 assessment it does not conclude that Mrs Q requires one-to-one care.  Nowhere in the document is that phrase used.  The assessment concludes that a 24 hour care plan needs to be put in place.  It is accepted in the 2015 assessment that Mrs Q requires 24 hour care.  What is in issue is whether it requires to be one-to-one care.

[22]      It is also said that the assessment failed to take into account the so-called anecdotal evidence as to what happened when Mrs Q was in residential care in Glenlivet.  There is in fact considerable correspondence between the respondents and the petitioner which touches on the care at Glenlivet.  There are also references to the care in Glenlivet in the reports which the petitioner put before the assessors.  Particular mention is made in the assessment of the history of falls at the home.

[23]      Ms Dickinson’s report records that Mrs Q was given a notified termination of the placement as the home was unable to offer the level of staffing that they considered Mrs Q required (see page 14 of 39).  That statement appears to be disputed.  A psychiatrist, Dr Coull who examined Mrs Q at Glenlivet, noted in a letter dated 1 July 2010, “To be honest I think [Glenlivet] are having more problems with [Mrs Q’s] family than they are with her and were it not for that I think they would be quite happy for her to remain.”  I was also shown a portion of an email from the Director of the home who appears to have taken the decision to terminate the placement with deep regret noting that there was no way that he could see of them being able to meet Mrs Q’s expectations of them or their expectations of care needs.

[24]      In considering anecdotal evidence about Glenlivet it appears to me that the most important issue is the management of falls and this is referred to in the assessment.  It notes Professor Kilbride’s evidence of a total of 8 falls while Mrs Q was resident there but also observes that most of these occurred during the time she had a urine infection, a fact that Professor Kilbride stated could not be ignored.

[25]      The petitioner made a number of complaints about Mrs Q’s care at Glenlivet.  These were considered by the Care Commission, subsequently the Social Care and Social Work Inspection Scotland.  A number of complaints were upheld or partially upheld though the majority appear to have been rejected.  I note that a complaint concerning risk of harm from falls was not upheld.  The Complaint Resolution Officer noted that “professional advice was congruent with senior staff advice but this was prevented from being put into action by family decision made on the service user’s behalf.”

[26]      My conclusion on this part of the case is twofold.  In the first place it seems to me that the so-called anecdotal evidence is not quite as clear cut as the petitioner might like to represent.  In making that observation I am not setting out to assess which of the parties is correct; merely that it cannot be conclusively said from that evidence that Mrs Q could not get adequate care in a residential setting.  Secondly however it cannot be maintained that the assessment ignored the evidence of Mrs Q’s stay in Glenlivet.  It was before the assessor in the reports from Ms Dickinson and Professor Kilbride and specifically referred to in the assessment.

[27]      In support of the submission that the assessment is perverse, irrational and contrary to the evidence Mr Mitchell pointed to a number of features in the assessment itself.

[28]      At page 6 under “background information” there is the following passage:

“Both writer and OT (the occupational therapist)  …stated that all service users have their own unique care needs. Both writer and [OT] stated that they had each assessed and worked with service users who had both cognitive and physical impairments which cause them to have a high risk of falls, whose needs were met with some form of 24 hour care. Writer also highlighted that, in her experience, both as a nurse and as a social worker, one-to-one care was only provided for service users who had very challenging physically aggressive behaviour. Therefore our opinion in relation to [Mrs Q] is that she did not have this level of challenging behaviour.”

 

The petitioner submits that this passage shows that the assessor took into account an irrelevant factor, namely those service users who exhibit challenging and physically aggressive behaviour.  The assessor it is argued having taken into account an irrelevant factor has then used that to dismiss the case for one-to-one care.

[29]      The last sentence of the quoted passage may be said to be a non sequitur (it is better phrased on page 16) but I cannot accept that a professional assessor is unable to draw on his or her experience to help inform their professional judgement.  The occupational therapist noted during her visit on 24 March 2015, as part of the assessment process, that she had known clients with the same level of care needs that have been adequately cared for within a care setting.  That experience is relevant to the assessment process. Indeed they would be failing as professionals if they did not take into account their experience and use that to form a professional judgement.

[30]      At page 10 there is the following passage:

“Both writer and [OT] discussed with [the petitioner] that while there was agreement that [Mrs Q] required 24 hour supervision due to her risks of falls, it was the writer’s and the OT’s opinion that there was no evidence to suggest that [Mrs Q’s] needs required one-to-one care. Both the writer and Jennie stated at their last home visit with [the petitioner] that they had each worked with service users who had similar needs to [Mrs Q] and that their needs were met within 24 hour care. It was reported to writer by family that while [Mrs Q] was an in-patient within the SGH (Southern General Hospital) last year [Mrs Q’s] carers supported her within the ward, but carers did not stay in the ward, and the NHS did not provide one-to-one care at that time.”

 

Mr Mitchell QC founded heavily on the use of the phrase “no evidence” to suggest that Mrs Q required one-to-one care was a clear error.  That he said was a clear error; the reports submitted by the petitioner offered evidence that this level of care was required.

[31]      Lawyers are used to dealing with opinions from experts as evidence to be set alongside factual evidence.  But this assessment was not written by a lawyer but by a social worker and as Lord Dyson said has to be construed in a practical way against the background in which they are written.  In that context the fact that Mrs Q apparently has one-to-one care at present is not evidence that such care is required.  I say ‘apparent’ because what appears to be provided is a sleepover service with the carer sleeping in a pull down bed in the sitting room while Mrs Q sleeps in the bedroom with the carer checking on her at least twice a night.  The assessment noted that when Mrs Q was an in-patient in SGH the carers supported her within the ward but did not stay with her and NHS did not provide one-to-one care.

[32]      The evidence that Mr Mitchell relies upon is not evidence of fact but opinion by professionals which was not shared or accepted by the professionals tasked with carrying out the assessment.  I do not accept that the formulation used by the assessor of “no evidence” is one that renders the assessment perverse or irrational. I turn now to the expert reports which were before the assessor.

[33]      The report from Grace Consulting noted that not only were Mrs Q’s needs well met with her current care package but that there had been a significant improvement in a number of areas including the incidence of falls.  The report concluded that “Only when it is evident that [Mrs Q’s] needs cannot be met in her own home, with the combined support from registered carers, family and community nursing services, should residential care be contemplated.”  The report noted however that the one-to-one care that Mrs Q currently benefitted from at home could not be provided in a residential setting without incurring costs which are likely to exceed local authority funding constraints.

[34]      The report from Sally-Ann Dickinson is strongly supportive of the petitioner’s position that what is required is 24 hour one-to-one care in Mrs Q’s own home.  She notes that Mrs Q had had no falls in the home in the last 4 years “in stark contrast to the 8 falls she experienced in Glenlivet Gardens during an 8 week period”.  It was highly unlikely that any residential care home environment even one that reportedly cares for residents suffering from dementia would be able to care for Mrs Q’s individual and personal living needs in a safe and consistent manner.  Dignity for Mrs Q should be a full consideration and this could only be met with a one-to-one package of care over a 24 hour period. 

[35]      Professor Lynn Kilbride concluded that Mrs Q requires one-to-one supervision to minimise her risk of falls and the associated morbidity.  Without significant investment Mrs Q cannot be cared for within a safe environment outwith her home.

[36]      The assessment noted that Ms Dickinson did not visit Mrs Q.  If so that might detract from the value that could be placed upon it.  In any event the mere fact that professionals disagree on what level of care is necessary is not a cause for overturning the decision of the professionals tasked with making the judgement.  At one point it appeared that Mr Mitchell was contending that the reports should have been accepted no matter what the assessor and the other professionals employed by the respondent thought.

[37]      Although neither counsel addressed me on this it is apparent that the assessor, with input from the occupational therapist, had suggested a number of measures that could be put in place to reduce the level of risk from falling.  These included visual prompts to remind Mrs Q not to attempt to get up without assistance.  These were rejected by the family on the basis that Mrs Q would not understand them.  The assessor and the occupational therapist noted that Mrs Q was able to read and do cross words and considered that she might well be able to understand them.  They had suggested a cognitive assessment but this was rejected by the family on the basis that her cognitive ability had deteriorated since the last assessment and there was nothing to be gained from a further assessment.  The assessment noted that the carers put a small table with items on it in front of Mrs Q and they used the sound of it moving when they were away from her to alert them to the fact that Mrs Q was attempting to get up.  During the night they used a baby alarm to alert them to Mrs Q moving.  There was bed guard to prevent her from falling out of bed.

[38]      There was therefore a basis for the assessor to reject the petitioner’s expert evidence and to rely on her own judgement assisted by colleagues.  It appears that this is a careful assessment of this elderly lady’s needs in which the assessor and those assisting her brought their own experience and expertise to bear on the subject.  They conclude that Mrs Q requires 24 hour supervision but they considered that that level of care could be provided in an appropriate residential setting.

[39]      Under section 12A(1)(b)(ii) of the 1968 Act the respondent, in making the assessment must take into account so far as reasonable and practicable both the views of the person whose needs are being assessed and of the views of the carer.

[40]      Mr Q complains that there was no proper involvement with the family and that their views were not taken into account.  There is no doubt that the relationship between Mr Q and the respondent has at time been fraught.  That comes across from his affidavit with many perceived inaccuracy in reports or communications highlighted.  It is easy to see how some of these will, at the very least, have irritated Mr Q.  For example in a Support Needs Assessment form dated 13 October 2014 Mrs Q is inaccurately described as a “double amputee”.  That assessment was subsequently withdrawn by the respondent.

[41]      However the submission that the respondent did not take account of the views of the family is simply wrong.  First there is a long history of engagement between Mr Q and the Council in which Mr Q repeatedly made his views known on what level of care should be provided for his mother.  Secondly the Assessment itself records at numerous points the family’s views and the fact that the assessor does not agree with it.  Their view is summarised under the section “your view” as follows, “needs constant 1:1 support 24 hours per day (168 hours per week)”.  Thirdly Mr Q provided the respondent with the three reports referred to above.

[42]      The suggestion that the family’s views were not taken into account is negated by the reference in the Assessment to the difference of views between Mr Q and the Council’s assessors.  Mr Mitchell in his written submission says that even if the Council did take the family’s views into account they gave such views insufficient weight.  With all due respect to Senior Counsel this submission amounts to no more than saying that the Council ought to have followed the family’s views.  The terms of the section require only that the respondents take them into account not that they follow them.

[43]      Mr Q’s position is set out in his affidavit and was supported to some extent in submission by Mr Mitchell.  He founds on a document entitled “support needs assessment” which was sent to the family as part of the process of formally obtaining their views.  The document is a questionnaire which appears to apply to a multiplicity of situations where an assessment and allocation process is required.  It is not directed specifically at persons such as Mrs Q who are elderly and infirm.  As such it attracted considerable criticism from Mr Q.

[44]      There is nothing in this argument.  As I have set out above the family’s views were well known to the Council.  If there are any flaws in this process, and I am not convinced there were, they are of no moment.  Mr Mitchell conceded as much when he described it as a procedural irregularity which was not material.

 

Decision on remedies sought under section 12A of the 1968 Act

[45]      Accordingly I shall refuse to pronounce a declarator in terms of Statement IV (a) and reduction of the support needs assessment under (b).

 

Sections 4 and 5 of the Social Care (Self-directed Support)(Scotland) Act 2013
[46]      The remaining issue is the remedy sought at (c).  The first part (c)(i), which is dependent on declarator and reduction being pronounced, falls away.  That leaves the issue as to whether the respondent has failed to perform its statutory duty under sections 4 and 5 of the Social Care (Self-directed Support)(Scotland) Act 2013.

 

The Petitioner’s Case
[47]      The remedy sought at c(ii) is supported by Statement 28 in the petition.  It avers that the respondent has taken no steps to ascertain the cost of the assessed need of 24 hour care in a nursing home including the need ascertained by Mrs Q’s risk of falling.  The nursing home must have staffing levels sufficient to address and minimise the risk of falling.  Reference is again made to the expert reports.  The respondent then avers that there is no nursing home which could provide the level of care required.  The staffing levels would require to be exceptional and is likely to be more expensive than the home care package presently implemented by the petitioner.  There is no proper basis for the respondent making a direct payment at present level (being a continuation of a payment arbitrarily based upon the provision of domiciliary services by Cordia to Mrs Q before her amputation and before the assessment of 26 August 2010) nor at the level of £594.70 fixed in the 2015 assessment but not implemented.

[48]      The petitioner’s note of argument at paragraph 31 appears to proceed on the basis that declarator is pronounced but I assume that is an error.  It repeats the argument set out in the petition but adds a new argument to the effect that the respondent has purported to use a resource allocation score but “there are no relevant averments (and no evidence) as to what that score, or the tool to determine it in fact are.”  Mr Mitchell relied on a Lands Tribunal case Northern Metco Estates Ltd v Perth and Kinross District Council 1993 SLT (Lands Tr) 28.

 

The Respondent’s Position
[49]      The approach of the respondent is set out in answer 14 in the petition as follows:

“GCC also carried out the 2015 assessment.  It found an eligible need for 24 hour care.  It found that need could be met in a nursing home.  It followed its standard procedures in reaching a decision as to the level of direct payment to make consequent on the 2015 assessment.  It applied its resource allocation tool, which seeks to provide a fair, equitable and transparent allocation of resources between all services users, in order to reach as estimated budget.  It noted that estimated budget on page 19 of 20 of the 2015 Assessment, which was £27,553.34 per annum.  The agreed estimated budget was determined at a Resource Allocation Group (“RAG”) on 5th May, 2015, having regard to the 2015 Assessment.  The RAG approved an agreed estimated budget of £31,009.44 a year (only part of which was a recurring cost), which was a budget of £594.70 a week.  The sums approved exceeded the estimated budget reached under the resource allocation tool.  The RAG noted that if Mrs Q was to move into a nursing home (where 24 hour care is available) the cost would be £30,451.51 a year.  Telecare services were approved.  An Outcome Based Support Plan (“OBSP”) was then prepared based on the agreed estimated budget.  The OBSP noted that of the agreed estimated budget £30,824.33 was a recurring cost.  The decision as to the actual individual budget was taken in the OBSP on 12th June, 2015 by approval being given to an individual budget of £30,824.33.  By a finance enquiry form dated 27th July, 2015 the finance officer, applying GCC’s standard charging policy, determined a client contribution of £101.34 a week should be implemented.  Accordingly weekly direct payments of £493.36 a week are made to the Petitioner.  GCC is not required to pay for a more expensive package of care (such as the cost of individual care in a house) when it has assessed needs as being capable of being met by a less expensive alternative (such as placement in a residential nursing home).”

 

 

Discussion
[50]      Section 5 of the 2013 Act provides that where a local authority decides under section 12A(1)(b) of the 1968 Act that the needs of the supported person call for the provision of community care services they must give the supported person the opportunity to choose one of the options for self-directed support.  These options are set out in section 4.  There is no disagreement that Mrs Q and her family chose option 1; the making of a direct payment by the local authority to the supported person for the provision of support.

[51]      “Direct payment” is defined in section 4(2) of the Act as a “payment of the relevant amount by a local authority to a supported person for the purpose of enabling the person to arrange for the provision of support by any person”.  “Relevant payment” is defined as “the amount the local authority considers is a reasonable estimate of the cost of securing the provision of support for the supported person”.

[52]      The first issue is what level of support is required, on the assumption, which now has to be made, that the provision will be assessed on the basis that it will be provided within residential care. It appears to me that part of the argument presented by the petitioner is based on the assumption that if Mrs Q was to go into care she would require to receive 24 hour one-to-one care. In other words all that would happen is that the care that Mrs Q receives at present would move into a residential setting.  I have already rejected the argument that the evidence shows that Mrs Q requires one-to-one care.  A further example illustrates the problem for the petitioner.  Mrs Q sleeps through the nights.  She wears pads which are reported to be wet each morning.  The sleep-over carers check on her at intervals through the night but otherwise they are asleep in the living room.  There is no reason why, in a residential setting, night staff cannot see to the needs, not only of Mrs Q, but of other residents.

[53]      So far as levels of payments are concerned under section 4 of the 2013 Act the respondent has to pay a reasonable estimate of the cost of securing the service.  It does not have to be a sum calculated to a degree of mathematical certainty.  As Ms Poole points out, the respondents pay for a substantial number of its citizens in care and will have a close and ongoing relationship with care providers.  The respondents would be expected to have an intimate knowledge of the cost of residential care in Glasgow.  Accordingly it should be able without too much difficulty to make a reasonable estimate of the cost of securing such services.  One might have expected that inflation and other pressures would have altered the rates as between the 2010 assessment and the 2015 assessment.  On the other hand, Mrs Q is assessed as requiring the same level of care as before the 2015 assessment.  If the assessment is the same and the costs of provision remain constant then it is not surprising that the payments will remain the same.

[54]      The petitioner also complains that the respondent has failed to make averments or produce evidence regarding the resource allocation score.  I am not persuaded by this argument.  In the first place it is not focussed in the petition.  Secondly it is for the petitioner to show that the level of payment is not a reasonable estimate of the cost of securing the provision; not for the respondent to demonstrate the tools used to reach that estimate.

[55]      In this connection I do not consider that the case of Northern Metco Estates Ltd v Perth and Kinross District Council is of any assistance to the petitioner.  That case involved a claim for compensation following the compulsory purchase of land.  The sum sought was £1.6 m.  The district valuer valued the land at £400.  The claim was based to some extent on the amount of economic rent that could be obtained on the notional development of the subjects as a leisure and retail complex.  The claimants used a computer model to produce an output figure used in the calculation.  The tribunal observed that they would not have accepted this figure without the basis for its generation being made explicit.  They pointed out that the primary evidence is complicated and untested.  In order to generate the output figure assumptions required to be made about income and expenditure over a period of time.  Income depends on further assumptions about the number of visitors.  This in turn depends on assumptions about the catchment population and the gravitational attraction of the centre.  Numbers of visitors would have to be seasonally adjusted and assumptions made about charges and aggregate spend.  These in turn have to be set against capital and running costs.  Accordingly the inputs into the computer program were central to understanding the case being made out by the claimants.  Without this evidence the claimants could not expect that the output figure would be accepted by the tribunal.

[56]      The situation here is very different.  Even if there is an onus, which I do not accept, on the respondent to lay out the basis for the resource allocation score it is merely a tool to assist the respondent in reaching s figure which it regards as a reasonable estimate of the cost of securing the provision of the support.  I do not understand it to be based on the making of assumptions which are not made clear to the court.  I note that in any event the sums approved exceeded the estimated budget reached under the resource allocation tool.

 

Decision on remedy sought under sections 4 and 5 of the 2013 Act
[57]      I am satisfied that there is no error of law in the way in which the respondent has discharged its statutory duty under the 2013 Act.

 

Conclusion
[58]      I shall refuse to pronounce the order sought and dismiss the second petition.  The petitioner is legally aided.  I shall reserve the question of expenses in respect of both petitions. 


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