![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Simpson, R (On the Application Of) v NHS Mid and South Essex Integrated Care Board [2024] EWHC 3063 (Admin) (06 December 2024) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2024/3063.html Cite as: [2024] EWHC 3063 (Admin) |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Help]
![]() ![]() ![]() ![]() ![]() ![]() ![]() | ||
![]() |
KING'S BENCH DIVISIONADMINISTRATIVE
COURT
SITTING IN LONDON
![]() |
B e f o r
e :
____________________
THE KING (on the application of DAISY ![]() | Claimant |
|
- and - |
||
![]() ![]() ![]() ![]() ![]() ![]() ![]() INTEGRATED ![]() ![]() ![]() ![]() | Defendant |
____________________
Lee Parkhill (instructed by Mills & Reeve)
for the Defendant
Hearing date: 14.11.24
Draft judgment: 25.11.24
____________________
VERSION
OF APPROVED JUDGMENT
Crown Copyright ©
FORDHAM J:
Introduction
The Claimant
Daisy is a 35-year-old lady that lives alone in a one bedroomed flat in Brentwood. She is currently inreceipt
of a personal health budget with which she employs
carers
over a 24-hour period. Daisy has a long history of mental health disorders diagnosed at the age of 17 and numerous physical health conditions including Diabetes, Gastro issues, Gynae issues, Chronic Lung Condition, Moya Moya disease,
Recurrent
Trans Ischemic Attacks (TIAs) and Sleep Apnoea.
Daisy has multiple interventions to support her breathing including BIPAP, Nebulisers six times daily, a four weekly intravenous infusion, a flutter device (a type of cough assist) and oral medications. Her fluctuating physical abilities mean that she often struggles to manage these interventions without support from hercarer.
Her
carer
also prepares all meals for Daisy and when she is present will also serve them to her. Daisy
reports
that she experiences intermittent swallowing problems especially following a TIA. Currently Daisy can access the toilet to pass urine and open her bowels however, she suffers from both incomplete emptying,
requiring
intermittent self-catheterisation at least once daily, and bowel dysmotility causing her issues with constipation that did
require
self-
administration
of enemas, however, this now appears to be managed with
administration
of Bisacodyl oral tablets. Daisy is at
risk
of skin deterioration due to her
reduced
mobility and as a side effect of oral steroids. She
requires
assistance from her
carer
to maintain her skin
integrity.
She has pro shield barrier cream applied at least twice daily. Daisy has a history of having suffered a stroke leaving her with left sided weakness. She is, however, still able to weight bear using pivot transfers although she stated that this is becoming more difficult each time, she has a further TIA. Currently Daisy
requires
the assistance of one to two people to assist her with the transfers. No falls have been
recorded.
Daisy has an electric wheelchair which she can drive herself once she has been assisted into position. Currently this is only used for outside purposes as her home is
reported
to be too small for wheelchair use.
Daisy canverbally
communicate clearly and articulately although she can intermittently suffer with mumbled speech especially after a TIA. Currently Daisy is orientated to time, place and person and has good insight into her impairments however, her memory is
reported
to have been worsening of late to the extent that she now
requires
prompting with all day-to-day activities. Daisy denies any challenging behaviour and states that she will only say no to something if she feels that she is being put at
risk.
Daisy has a complex medicationregime
which she currently manages herself with assistance from her
carer
although she stated that she is finding this more difficult. She has purchased an Insulin Pump and a constant glucose monitor to manage her diabetes. She
requires
assistance from her
carer
to fill and set up the pump and from her
carer
to enter carbohydrate amounts and blood sugar
readings
into the pump for it to calculate bolus doses. Daisy is prescribed Codeine to manage her pain however, she
reports
that this is ineffective, and she suffers constant pain. Oramorph is prescribed for breakthrough pain
relief
and Daisy can
request
this from her
carer
when needed. Daisy has also
recently
been diagnosed with Endometriosis which causes her to have heavy bleeding from her
vagina.
She
requires
assistance from her
carer
to manage this at times. Daisy is extremely difficult to cannulate and has now had a portacath inserted for easy
vein
access.
Daisy suffered a stroke in 2021 and has been diagnosed with Moya Moya disease which limits the flow of blood to her brain and puts her atrisk
of further strokes. Daisy stated that currently she is having TIAs daily which temporarily affect her speech, mobility, and cognition. Daisy has multiple conditions affecting her daily life : Moya Moya disease (under the Bristol, awaiting cerebral
vascular
bypass operation); Admissions to Queens with stroke and sub-arachnoid haemorrhage; Brittle asthma (under Brompton Hospital); Obstructive sleep apnoea (BIPAP) (under the Brompton); Diabetes Mellitus (presumed type 1, insulin treated, supported by the diabetic nurses);
Recurrent
episodes of elevated lactate levels (uncertain cause); Schizoaffective disorder; Migraines; Cushing's syndrome from previous long term steroid use. Presumed adrenal suppression due to long term high dose oral therapeutic steroid use; Progressive multiple fatty lumps; Emotional Unstable Personality Disorder. Daisy is known to multiple services including: Neurosurgeon;
Respiratory
physician; Gynaecologist; Ophthalmologist; Consultant neurologist - Dr De Silva; Dermatology; Diabetes and Endocrinology - Basildon and Thurrock Hospital; Occupational Therapy for support and equipment.
I have a life expectancy prognosis of 1-2 years. So, for every minute that passes, I am dying. My alreadyvastly
![]()
reduced
life expectancy is diminished for every day that I am not able to
receive
a personalised package of
NHS
Continuing Healthcare that meets my physical and mental health needs in the immediate future I have a number of complex diseases which are so
rare
that, statistically, finding someone who understands my needs is nigh on impossible. For example, I have a condition called Moyamoya disease, which affects only one in every million people. This causes me to suffer from 17 Transient Ischaemic Attacks ('TIAs' / strokes per week (i.e., 3 per day), which significantly hampers my quality of life. Any of these stroke episodes could ultimately prove fatal.
Amongst other conditions, I have severe asthma; excessive dynamic airway collapse; type 1 diabetes; and sleep apnoea, for which Ireceive
a large amount of medication and medical equipment that needs to be
administered
every day. My medication dosages change and titrate daily. I have different antibiotic
regimen
and steroid doses. I have some medications that must be given in an emergency and are time sensitive.
Carers
alone cannot make the clinical judgments to
respond
to the different needs in a safe way. I have multiple different clinical needs. To treat me and give me the correct medication, there needs to be ongoing clinical assessment. There is no way to
care
plan all my 30+ healthcare conditions that
reduces
the need for clinical judgement.
Mycarers
are having to
administer
medication to me, despite having no clinical expertise. I
receive
high-
risk
medication for example, insulin, morphine, and codeine none of which is clearly documented. This has meant that my
carers
have overdosed me with insulin and morphine due to not anticipating the complexity and intensity of my needs. My medication
regime
often changes on an hourly basis. Without 24/7 nursing provision to ensure that my
care
![]()
regime
is safe, I am terrified that my
carers
could overdose me. If my
carers
walked in and found me drowsy which is not unusual, given my needs that could stem from multiple different clinical needs; or even a combination of needs. For example, stroke, brain bleeds, seizure, hypo, hyper, adrenal suppression / failure, infection, and
respiratory
failure. In my case, these all have different management and treatments; and if the
carers
treat me for a stroke and miss a hypo, my conditions then end up mimicking each other. It is too high
risk
for
carers
to be making judgments unaided.
Given therarity
of my conditions, whenever I seek
care
from healthcare professionals from day to day, they generally do not have the experience and do not understand any of my conditions. It is difficult to find someone else like me across the
board.
That makes the issues in my
care
challenging because there is no set standard for what the
care
should be as it is so
rare
and complex, professionals have no benchmark, no comparator, on which to base my needs. So, many of the complexities in my
care
stem from the diseases I have got being
very
difficult and
very
![]()
rare,
based within a system that is not set up for someone with the level of
rarity
and complexity of my diseases.
So, a lot of mycare
is based at national services: tertiary
care
providers. Tertiary
care
providers are
removed
from secondary
care
services they are highly specialised. In adult
care,
they are generally spread out across the country. Most adults, if they are unfortunate, would end up under just one or two of these specialised services. Due to the uniqueness of my conditions, I have ended up under multiple specialist services spread out across the UK all dealing with professors and specialists who are top of their field in their area. However, this has left a massive crater in my
care
at a local level because my needs are deemed "too complex" for secondary
care
which is what the ICB commission and what local services commission so that is why I am under national providers. However, the national providers are also terrible at speaking to each other as they are all under different systems (for example, System One, System Two, EPIC, amongst others).
Part of the breakdown in mycare
is not just the complexity and the actual conditions themselves, but also how those conditions are managed and how they are now spread out across the entirety of England. There is no professional bringing this together; and so, complexity is used within that to deny needs and pass the buck onto different sectors of the
NHS.
It strikes me that the ICB has done this time and time again in order to deny the full scope of my needs. It tells me to speak to my GP, who then
refers
me to other services within the
NHS,
who cannot assist me on grounds of complexity.
I am under something like 35 different clinical teams. Every time I see a doctor, theyrefer
me to another set of doctors hence why I am under so many different people. I am having to travel frequently to London, Cambridge, and Bristol. I am travelling almost all the time. As part of my previous
care
and support plan, I was getting overnight stays for hospital trips. I was also getting transport costs covered. This was agreed due to the sheer amount of ongoing hospital appointments I have got. At the time the ICB assessed me, I had 18 appointments in 30 working days. These were long-distance appointments. Some weeks, I am at multiple appointments in one week. It has not been unheard of where I have been in London, Cambridge, and Bristol all in the same week
The Flat
Previous Care
Coordinators
The PA
I am Daisy'sAdministration
Support as the
administration
side of Daisy's complex situation is substantial as you can imagine. I also cover everything HR
related.
(Employment, Contracts, Sickness, Holiday, etc). I was initially employed to take the pressure from Daisy and deal with all paperwork, arranging clinical appointments, and supporting Daisy with anything
Administration
![]()
related.
It quickly became apparent that she needed help with HR Duties and a Lot of complaints/issues etc which in turn took over my
role
completely. I find that most days we are dealing with issue after issue, [setback] after [setback], chasing professionals for
responses,
begging for help on Daisy's behalf. This was taking me away from what I was employed for on 30 hours a week. I work around 40-45 [hours] per week for Daisy now in order to complete what is needed and even then it's not always completed. I have worked in one of the busiest
NHS
A&E departments and I can honestly say that I am far busier In this
role
for Daisy, the paperwork and complex nature of everything makes it a lot more chaotic and I would hate to think how Daisy would be coping without me.
The Office Space
Daisyrented
an office space within a 1 min walk to her flat. She did this for the following
reasons
The confidential paperwork that I deal with daily would have been lying around in my house and I do not have space for an office. My house is a
very
busy house with 1 teenager and 2 small children. All paperwork is now safely filed at the office and can be
referred
to easily. It's within a 1 min walk to Daisy so I can go and consult with her as necessary.
Carers
can come there for breaks/shower and changeover etc, this saves more people than necessary being in Daisy's flat at one time. Weekly Team meetings are held in the office. Job interviews are done in the office. The office space has been a great addition to the team in every way.
Office space Ms Duggan and [MsSimpson's]
![]()
carers
utilise the office space it is used predominantly for team meetings, HR meetings, disciplinary concerns, interviewing new
care
staff, confidential telephone calls,
vetting,
training, and storing confidential paperwork. You will be aware that privacy is of the utmost importance to Ms
Simpson
She has also been trapped in one
room
for the last three years; hence, she would not be able to fit two
carers
and a clinical case coordinator into her flat. Otherwise, Ms.
Simpson
considers that she would be exposed to safeguarding
risks;
for example, she would have to interview new
care
staff and manage the
administrative
aspects of her
care
provision from her bed, which is an unjustified interference with her personal space [T]his goes directly to her health and wellbeing outcomes.
CHC
Use of community services. 6.3.13. PHBs should not be used to purchase services that the ICB already commissions, including community health services and equipment. Any exception to this would need to be considered by the ICB on a case-by-case basis. 6.3.14. During thecare
and support planning process the individual (or their
representative)
will be informed of existing
NHS
services.
Direct Payments
The enclosed plans do not contain any provision beyond that which the ICB has determined isreasonably
![]()
required
to meet assessed needs. If the Claimant would like to discuss the detail of the plans and/or explore the option of including additional provision within the PHB plan aimed at enabling her to achieve health and wellbeing outcomes, then the ICB is happy to engage with her,
via
email for that purpose.
As a general principle, the ICB will only fund this additional provision from within the indicative budget financial envelope. This is because the indicative budgetreflects
the cost of the
care
the Claimant is assessed to
require
were it to be commissioned directly by the ICB. The indicative budget therefore provides both a financial envelope which is adequate to meet assessed need and a way for the ICB to manage its finite
NHS
CHC
resources
equitably for all
NHS
CHC
recipients.
Public Law
(1) When it assesses needs and identifies arrangements to meet needs, an ICB is entrusted with making evaluative judgments: about what the individual's reasonable
requirements
are; about what services and facilities are appropriate to meet their
relevant
needs; and about what services or facilities for
care
are appropriate as part of the health service. These are all evaluative judgments for the ICB as the primary decision-making authority. The High Court has no function of substitutionary
review.
Instead, the Court applies conventional standards of
reasonableness
review,
See Wahid
v
Tower Hamlets LBC [2002] EWCA Civ 287 [2003] HLR 2 at §33; and Lambeth LBC
v
Ireneschild [2007] EWCA Civ 234 [2007] HLR 34 at §44.
(2) Those conventional standards of reasonableness
review
involve asking: (a) whether the outcome is beyond the
range
of
reasonable
responses;
(b) whether the
reasoning
process involves a
recognised
species of error of approach (eg. an error of logic or the disregard of an obviously
relevant
consideration); and (c) whether there was an insufficiency of
reasonable
inquiry. See
R
(Law Society)
v
Lord Chancellor [2018]
EWHC
2094 (
Admin)
[2019] 1 WLR 1649 at §98 (as to (a) and (b)); and Balajigari
v
SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647 at §70 (as to (c)).
(3) Decision documents including needs assessments and care
plans are
read
and approached with an understanding of their nature and function, avoiding over-zealous or legalistic examination. See Ireneschild at §57.
(4) A judicious balance must be struck. On the one hand the necessary intensity of review
is high and the scrutiny close, given the profundity of the impact and since provision of a global sum may make a failure to meet eligible needs less
visible.
On the other hand, the judicial
review
court must
respect
the functional distance between primary decision-maker and secondary
reviewing
court,
recognising
the prospect of judicial blind-spots and avoiding inappropriately over-exacting demands. See
R
(KM)
v
Cambridgeshire County Council [2012] UKSC 23 [2012] PTSR 1189 at §36.
These Proceedings
About the Decision-Making Process
The ICB committed to continuing thecare
and support planning exercise with a completion date planned for 12 April
2024.
Ms
Simpson
was to provide further information or evidence for consideration by 15 March
2024
and that fact was
recorded
on the face of a court order. This was to give Ms
Simpson
time to gather any information and the ICB sufficient time to consider it. Ms
Simpson
declined
requests
for a meeting in person or
remotely
and
requested
the ICB only communicate with her
via
email, predominantly
via
her personal assistant Ms Duggan. Ms
Simpson's
lawyer expressed that such a
request
should be accommodated as a
reasonable
adjustment. The ICB agreed to accommodate this
request.
Ms
Simpson's
solicitor filed a witness statement on 8 March
2024
exhibiting
various
documents which the ICB were to consider as part of its
review,
which it did. Ms
Simpson
also continued to supply information in support of her
views
as to needs beyond 15 March
2024,
to which the ICB has continued to have
regard.
Additionally, as part of the
care
and support planning process,
registered
nurses Kim Oddy and Nicola Wood, who are the ICB clinical case managers assigned to Ms
Simpson,
contacted professionals involved in Ms
Simpson's
![]()
care
and treatment for further clarification around
care
plans and Ms
Simpson's
needs. They also
reviewed
her electronic
records
on the SystmOne and Broadcare systems, as well as the documents submitted by Ms
Simpson
and the
review
from September 2023. Nicola Wood emailed Ms
Simpson
![]()
via
her personal assistant Charlotte Duggan for any information gaps that they were unable to find and to seek clarification on information as needed and information provided informed the process. Kim Oddy, to prepare draft PHB plans, contacted Ms
Simpson
![]()
via
Charlotte Duggan to identify her current staff and pay
rates,
what PPE Ms
Simpson
![]()
requires,
the costs of PPE, her payroll provider and the associated costs. Kim Oddy
requested
the cost of the Payroll services three times, but has not yet
received
this information. Kim Oddy also worked with the brokerage Purple to prepare two draft PHB plans, one using Ms
Simpson's
current
rates
of pay and one at the market
rate.
Professionals contacted included, Ms
Simpson's
Occupational Therapist, Speech and Language Therapist, her GP practice, her specialist Moya Moya Consultant, her Diabetes team,
NHS
Continence Services and the
respiratory
specialists at
Royal
Brompton
regarding
asthma. The ICB also had
regard
to
recommendations
in the independent
review
it commissioned
regarding
Ms
Simpson's
needs and
care
and support within the period of 7th March 2022 to 31 May 2023.
Fresh Evidence
Alternative Remedy
The Package of Care
in Overview
[i] Co-ordinate appointments ie. alladmin
involved including phone calls. [ii] Liaise with medical teams to co-ordinate
care
( including provision of equipment ) and ensure all teams have up to date information. [iii] Attend hospital and other medical appointments. [iv] Supervise and support PAs including ensuring all staff training is up to date, they have completed
care
competencies and online/face to face training, complete
rotas,
support with timesheet completion and any other
admin
![]()
relating
to staff that is
required.
[
v]
Escalate any medical concerns to the appropriate teams. [
vi]
Collate/write
care
plans and ensure all information in them is keep up to date in consultation with other
relevant
professionals.
Nursing Care
(1) The Defendant's impugned decision of 12.4.24 fails lawfully to address the Claimant's relevant
needs for the
care
of a nurse within her home. The Claimant has a clearly evidenced need for nursing
care,
which moreover needs to be around the clock (24/7). A 30-page schedule of unmet needs from the Claimant and her
care
team dated 2.4.24 clearly describes 24/7 nursing provision as needed in
relation
to the following medical conditions or needs:
ventilation;
increased strokes/
respiratory;
infection lungs (including bloods, IV medication when
required
and fluids); strokes/TIAs (including IV fluids when needed); swallowing issues; communication issues; pain; endometriosis (including IV as
required);
the overall need for 24/7 nursing
care
(including ability to access IV fluids); bloods; and IV access. The Defendant has failed to identify any need for any nursing
care,
still less the 24/7 nursing
care
which is evidenced as needed. The CCC
role
description does not make any
reference
to the CCC undertaking any nursing
care.
The suggestion that if necessary - the CCC as a trained nurse could take the Claimant's bloods
via
the portacath is made for the first time in witness statement evidence.
(2) There is the position as to dangerous drugs. There was clear evidence before the Defendant about the serious implications of dangerous drugs in the hands of unequipped carers.
The Claimant's solicitor put forward a
report
by Lynn Jones at Health Advocacy (28.11.23) which described
a number of life-threatening occasions where Daisy hasreceived
the incorrect medication or treatment as the
carer
was not equipped to manage the complexity of the situation.
The Plan does not acknowledge therisks
from dangerous drugs and does not even include Oramorph (morphine) within the 20 medications said to be "listed for the month of August 2023" on SystmOne (a clinical computer system); which fits with a pre-action letter of
response
(23.2.24) which had said: "There is no
record
of the Claimant being on morphine in possession of the ICB". Dangerous drugs need nurses to
administer
them.
(3) There is the position as to IV respiratory
medication. The Plan identifies no provision for nursing
care,
including in
relation
to drug therapy and symptom control where the IV box is checked as applicable and the provision is a
carer.
Carers
cannot
administer
IV
respiratory
medication. The Plan says:
IVrespiratory
medication is
administered
![]()
via
the portacath in a clinical environment only (The
Royal
Brompton).
The point is that this would beadministered
in the home, except that the Defendant has failed to make provision for this. A post-decision letter of 24.6.24 from the
Respiratory
Consultant at The
Royal
Brompton to the Claimant's GP says: "we aimed to provide an antipseudomonal intravenous antibiotic at home". A post-decision email of 1.7.24 describes arrangements for "IV training for home antibiotics" with a "designated person". The Claimant's third witness statement (31.10.24) produces a plan on 8.4.21 for Basildon University Hospital to deliver, by its Hospital at Home team, IV Ceftriaxone. All of this is legally
relevant
fresh evidence, to demonstrate that there was no
reasonable
enquiry and to show what a
reasonable
enquiry of The
Royal
Brompton would have elicited.
(4) Finally, there is the position as to IV fluids. The Plan says:
Monthly infusions for Asthma at theRoyal
Brompton. Daisy advised that she
requires
IV fluids in the community but there is no supporting evidence
regarding
the indication for this and Daisy's GP has advised
via
email that - IV fluids cannot be prescribed and monitored safely in primary
care.
The point is that the Defendant has confused a "who" question with a "what" question. Therelevant
email from the GP's surgery (which was dated 26.2.24) was
recognising
the "what" (that IVF fluids in the community were indicated) and the "who" (that prescribing would need to be by The
Royal
Brompton). In that email, the GP Practice Manager had written:
I didn't go back to the ICB in the email about the IV fluids as we were asked at a meeting about it and we said that although we were aware you needed them it is not something we can prescribe in Primarycare
as its not available for GPs to prescribe - it's just not on the system - Brompton or whoever said you needed it originally would need to prescribe it as needs to come from a consultant.
This email was in the Claimant's solicitors'representations
bundle, together with a witness statement from the solicitor Mr Peters who described this as a document which:
states that the Claimant doesrequire
IV fluids but that it is not prescribed in primary
care;
therefore, the ICB would need to engage with her consultants at Brompton Hospital.
This alerted the Defendant to an inquiry which wasreasonably
![]()
required
and which Ms Lowe's first witness statement asserts but without any supporting evidence was undertaken. The Defendant does not suggest that IV fluids can be
administered
by a trained
carer
or the CCC.
(5) In all these circumstances and for all these reasons,
the Defendant's decision as to nursing
care
was outside the
range
of
reasonable
responses
or involved a failure of the public law duty of
reasonable
enquiry.
(1) The impugned decision letter started with this:
In producing this document, the ICB has considered the further material provided by the Claimant in addition toreviewing
material on her SystmOne
records
and information provided by professionals involved in her
care
and support. The ICB has not found the Claimant to have an assessed need for 24-hour nursing
care.
That was an evaluative judgment, as was the Defendant's consideration ofvarious
elements of needs and
care.
(2) The CCC was specifically designed to be a qualified nurse, whose hours were costed as "Clinical Case Manager" and "Nurse Support".
(3) The letter of response
of 23.2.24 is not a basis for a finding that the Defendant was in error as to morphine when it made its later decision on 12.4.24, giving an inclusive list (medication "includes"), and including an express statement elsewhere in the decision that "Oramorph is prescribed for breakthrough pain
relief".
(4) The point made by Ms Jones about medication needs to be seen in its setting. As the Claimant's solicitor's witness statement of 6.3.24 accurately characterised it, the Jones report
"outlined the critical elements of the Claimant's
care
and
recommended
an experienced nursing coordinator". The Jones
report
described Katie McIlroy's previous
role.
That was the context for the point made by Ms Jones about drugs. Ms Jones said:
Since theremoval
of Katie McIlroy (
Care
Coordinator) by the Mental Health Team there have also been a number of life-threatening occasions where Daisy has
received
the incorrect medication or treatment as the
carer
was not equipped to manage the complexity of the situation. No one has been put in place to take up all of the things Katie was doing and consequently the organisation around her
care
is in total chaos.
Ms Jones went on to explain why a NursingCare
Coordinator was an essential
requirement
to provide: a Daily
Care
Plan which is cohesive and
responsive
to all medical and practical events; coordination of medical appointments including liaison with hospitals and clinical departments to ensure they fully prepared and have access to Daisy's
care
![]()
records;
support for
care
staff for the more complex tasks
resulting
from unplanned daily events; training of
care
staff in the use of equipment which they may be unfamiliar with; and management of complex
care
provision.
(5) The Plan describes the CCC role
as being "in line with the
recommendation
contained in the independent
review
and GP
recommendation
for a full time position". The GP's
recommendation
was in a letter dated 18.10.23 which described as beneficial "a nurse to support her
care
team", as a "case manager" who would "bring Daisy's
care
together", being someone with a clinical background to carry out this
role
given the Claimant's complex health needs. The independent
review
was a 30-page
report
dated 7.2.24, accurately described by the Claimant's solicitor as a
review
which "
recommended
the Claimant's need for nursing oversight". The independent
review
was
recommending
the following:
A dedicated clinicalresource
could provide
care
coordination, support to avoid escalations or better manage escalations in
care
by monitoring and providing advice to the PAs delivering day-to-day
care.
In addition, some key tasks that cause issue such as the drawing of blood from the Individual's Port could be fulfilled by this function.
Given the expressreference
in the Plan to this independent
review
![]()
recommendation,
it is unsurprising that Ms Lowe's witness statement should describe the CCC, if necessary, taking bloods.
(6) The Plan records
that specific consideration was given to both IV
respiratory
medication and IV fluids. As to IV fluids, it was correct that the GP Practice Manager had advised that IV fluids could not be prescribed and monitored safely "in primary
care"
(ie. by the GP). That is the "who". The Claimant's solicitor said the GP Practice Manager was stating that "the Claimant does
require
IV fluids". But that could only be a secondary understanding, as seen in the Practice Manager's
references
to "Brompton or whoever you said needed it". The Defendant was entitled to ask itself whether there was "supporting evidence
regarding
the indication for this". What had been elicited was that the Claimant had monthly infusions for asthma at The
Royal
Brompton. There are the post-decision communications from The
Royal
Brompton dated 24.6.24 and 1.7.24. But these are about IV antibiotics. And what this evidence shows is that The
Royal
Brompton's plan for IV antibiotics at home could be delivered by a
carer
with suitable training, which The
Royal
Brompton was arranging (1.7.24), as is the understanding described in Ms Lowe's third witness statement (7.11.24).
(7) I am unable to see any unlawfulness in the Defendant's approach to nursing care.
I accept the submissions of Mr Parkhill on this part of the case.
The PA
The Office Space
The use of the office space has helped manage boundaries for me. We use the space for team meetings. Conducting interviews. Training (when we all fit). HR issues - if I have to tell staff off or issue a warning it is difficult to do that from my bed. Thecarers
go sometimes when they need time out of / break- there is a kitchen, showers. It's 40 seconds away. The calls that could cause are distress are taken there
removing
me from the conflict.
Admin
is based there.
I accept that the Claimant's home is small and that the office space is a considerable advantage. The decision letter emphasises that the office space "is not approved" adding that it does not feature in any iteration of the Claimant's care
and support plan. I am unable to characterise as unreasonable as understood in public law the Defendant's failure or
refusal
to accept that the Claimant's home is an insufficient space for the delivery of the services to meet her needs, such that the Defendant has the
responsibility
to pay for a further
room;
still less any failure or
refusal
to accept that this is accommodation appropriate as part of the health service. The CCC's job description does not
require
full-time presence in the Claimant's home. There is no unreasonableness or illogicality in Ms Lowe identifying some tasks as capable of being performed from home or
remotely.
The Defendant has identified what is accepted as being the
right
question: whether the office space is
reasonably
required
to meet an assessed health and
care
need. It has in my judgment answered that question
reasonably.
I am unable to see any unlawfulness in the Defendant's approach to the office space. I accept the submissions of Mr Parkhill on this third part of the case.
Massage Therapy
Slidesheets
Wheelchair
(1) The first problem is that the alternative route
is tried, tested and has failed. The Claimant's solicitors had explained the position in an email on 25.3.24 (attaching a complaint letter dated 30.8.22):
Wheelchair We are informed that our client has never declined areferral
for
NHS
wheelchair services see complaint letter attached. As acknowledged in the ICB's Letter of
Response,
Ms
Simpson
was seen by wheelchair services but did not meet their criteria for an electric wheelchair on the basis that she had
recurrent
strokes. The wheelchair offered to her which was unsuitable for her needs was declined. Our client considered this was a blanket policy (as it failed to take into account her specific circumstances) and was unlawfully discriminatory on the grounds of her severe disabilities. She was then discharged from wheelchair services, and the ICB initially
refused
to fund the wheelchair within her PHB. However, an 8-week hire agreement was funded by the ICB until an alternative had been sorted. In light of her discharge from
NHS
wheelchair services, that never materialised; hence, from our client's perspective, the ICB's agreement to fund her wheelchair
remains
live.
That means a case-by-case exception isreasonably
needed, as described in the Defendant's PHB Policy at §6.13.13.
(2) The second problem is that the Defendant's insistence on funding a wheelchair only through the NHS
referral
route
is linked to an exaggerated point about safety. The Defendant has
relied
on an email dated 26.9.22 from the LTCC Senior Manager Sue Patterson to Ms Lowe, which says:
Looking at some of DS medical diagnoses we would also have concerns long term is there is further cognitive deterioration as to whether DS could manage a powered chair. Also for [noting] should DS have any seizures the powered chair would no longer be able to be left with DS for her own and others safety. This is the same practice as with a driving licence.
This was a description of a possible future problem, if there were a further cognitive deterioration; it does not inform a present adverse decision.
(3) The third problem is about delay and interim arrangements. Any referral
clearly needs to await the new CCC being in post. Whenever a
referral
were made, it is known to take considerable time. That means there needs to be an interim arrangement. But what would it be? This has gone entirely unanswered. In the email on 25.3.24 the Claimant's solicitors said this:
In any event, if our client werere-referred
to wheelchair services, this would likely be a protracted process it previously took 18 months. Nor would there be any interim provision pending
resolution;
please confirm whether the ICB can propose any
viable
alternatives?
In an email on 31.7.24 Ms Duggan asked:
please could you confirm what the "proposed interim arrangements" to address the delay would look like in practice?
These straightforwardrequests
went unanswered. It was unreasonable for the Defendant not to identify an interim arrangement, which would be in place upon a
referral
being made. For this and the other
reasons,
the Defendant's
response
in excluding the wheelchair from the Plan and budget is outside the
range
of
reasonable
![]()
responses
and unlawful.
Interim arrangements for meeting your wheelchair needs, insofar as they arerequired,
can of course be explored with
NHS
wheelchair services following
referral.
No referral
was made, and no exploration of interim arrangements with
NHS
wheelchair services, "following
referral",
arose. There was and is no evidence that a
referral
would need to await a new CCC, or why that would be the case. This case would be different in its complexion if: (a) a
referral
had been made; (b) no suitable interim arrangement was available from
NHS
wheelchair services; (c) the Defendant had been
requested
to extend the Plan to fund the existing wheelchair; and (d) it had
refused
to do so. But that is not the position. It was not beyond the
range
of
reasonable
responses
for the Defendant to decide that a wheelchair was available through
NHS
wheelchair services, and that interim post-
referral
provision should first be explored with
NHS
wheelchair services, notwithstanding the events of 2022. The
relevance
of the safety point is this. It illustrates the sorts of issue which it would be for
NHS
wheelchair services to address itself acting lawfully,
reasonably
and fairly as the public authority specialist arm dealing with wheelchairs. I am unable to see any unlawfulness in the Defendant's approach to the wheelchair. I accept the submissions of Mr Parkhill on this sixth part of the case.
Travel and Hotel Costs
(1) It is self-evident that the Claimant has an assessed need to travel to her medical appointments. The CCC's job description requires
the CCC to travel with her to them too. The decision letter of 12.4.24
refuses
the
requests
for transport costs and hotel stays, on the basis that they were not identified as
reasonably
required
to meet an assessed health and
care
need within the CHC package of
care.
That decision is beyond the
range
of
reasonable
responses.
(2) Funding had previously been allowed. On 9.11.23 it was described as £400 per month transport (based on taxis to The Royal
Brompton and for London appointments) and £400 per month hotels (based on twice-monthly stays in Bristol). On 22.9.23 it had been
recorded
as £400 per week for transport and £200 per week hotels. This is a clearly evidenced need. In an email dated 25.1.24, provided by her solicitor on 6.3.24, the Claimant identified the different hospitals she has to attend and their locations, and describing the arrangements for stays in hotels. Also before the decision-makers was the GP's letter of 18.10.23 describing the 17 clinical appointments which the Claimant had attended in 30 days. This funding was simply
removed.
(3) There is no reasoning
in the decision documents. There was no enquiry, exploring with the Claimant alternative sources of funding and the lived experience of trying to access them. Ms Lowe's witness statement describes making contact with Ms Duggan in
relation
to information gaps, but not in
relation
to travel and hotel costs. The only explanation Ms Lowe gives is this:
MsSimpson
is in
receipt
of benefits and owns a Motability
vehicle
which she can use to travel to appointments. She is funded for 2:1 support 24 hours a day and has a private electric wheelchair. There is no basis for a
reasonable
![]()
requirement
for additional funding for transport costs to attend hospital appointments as this can be met through her personal finances and other benefits. At paragraph 46 of her witness statement of 19 April
2024,
Ms
Simpson
has
rightly
identified that she has access to
NHS
funding for transport for appointments too. This is in the form of travel costs being
reimbursed
![]()
via
the low-income funding scheme and also
via
hospital transport (though this appears not to have worked well for her in some cases). These schemes are not managed by the ICB and are properly the
responsibility
of the Trusts providing Ms
Simpson's
![]()
care
and treatment.
(4) The problem with this reliance
on alternatives is that they do not cover the transport costs. So far as benefits are concerned, the Claimant's third witness statement (31.10.24):
I am continuing to pay for my transport expenses out of my disability benefits, which includes PIP enhanced mobility component at arate
of £75.15 per week; however, this money is earmarked towards my Motability
vehicle.
It does not cover the additional costs of petrol.
So, this leaves the petrol costs entirely unfunded.
(5) Ms Lowe acknowledges that the hospital transport scheme have "not worked" for the Claimant. The Claimant's first witness statement (19.4.24) was clear and explicit:
I am getting pushed further and further into poverty due to theserestrictions.
I am entitled to hospital transport. So, there is the 'low income scheme' on the
NHS
which
reimburses
travel fares; but the issue I have is that you have to pay out for the travel fare before you are
reimbursed.
You wait sometimes 90 minutes at these cashier desks having to evidence need I am simply not well enough. I need the ICB to
realise
that this is my day-to-day
reality
![]()
(6) The Defendant has failed to act reasonably.
It did not undertake a
reasonable
enquiry. It has not appreciated that PIP enhanced mobility component is swallowed up by costs
relating
to the mobility
vehicle,
and does not cover any petrol. It has failed to appreciate that the
NHS
reimbursement
schemes do not in practice work for the Claimant at all. The exclusion of transport costs, and hotel costs, is not a
reasonable
response.
6 December 2023 - £62.00 petrol
8 December 2023 Great Ormond Street Hospital 55 milereturn
journey
2 January2024
Brompton hospital 66 mile
return
journey
9 January2024
GP surgery in Brentwood 2 mile
return
journey
22 January2024
Harold Wood clinic 10 mile
return
journey
5 February2024
- £67.77 petrol
12 February2024
Harold Wood clinic 10 mile
return
journey
22 February2024
Hutton (dentist) 7 mile
return
journey
4 April2024
Addenbrookes hospital 98 mile
return
journey
8 April2024
Harold Wood clinic 10 mile
return
journey
18 April2024
Brompton hospital 66 mile
return
journey
19 April2024
National neurological hospital 60 mile
return
journey
30 April2024
- £95.01 petrol
8 May2024
National neurological hospital 60 mile
return
journey
14 May2024
Brentwood community hospital 3 mile
return
journey
20 May2024
Brompton hospital 66 mile
return
journey
13 May2024
Basildon hospital 22 mile
return
journey
13 June2024
- £94.77 petrol
19 June2024
Brompton hospital 66 mile
return
journey
21 June2024
Hutton (dentist) 7 mile
return
journey
24 June2024
Moorfields hospital 52 mile
return
journey
30 June2024
- £86.05 petrol
8 July2024
Brompton hospital 66 mile
return
journey
11 July2024
Addenbrookes 98 mile
return
journey
18 July2024
Brompton hospital 66 mile
return
journey
29 August2024
- £91.43 petrol
31 August2024
National Neurological hospital 60 mile
return
journey
5 September2024
Guys hospital 58 mile
return
journey
10 October2024
Guys hospital 58 mile
return
journey
Conclusion
Order
Permission to appeal