Petition Of Frank William Fletcher As Guardian In Property And Financial Matters Of Lisa Joanne Smart For Judicial Review Of The Failure Of Fife Council To Carry Out Their Statutory Duty Under Section 12a Of The Social Work (scotland) Act 1968
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Neutral Citation | [2015] CSOH 183 |
| Published date | 30 December 2015 |
| Date | 30 December 2015 |
| Court | Court of Session |
| Docket Number | P1272/14 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 183
P1272/14
OPINION OF LORD JONES
In the Petition
FRANK WILLIAM FLETCHER, AS GUARDIAN IN PROPERTY AND FINANCIAL MATTERS OF LISA JOANNE SMART
Petitioner;
for
Judicial review of the failure of Fife Council to carry out their statutory duty under section 12A of the Social Work (Scotland) Act 1968
Petitioner: Bartos; Digby Brown LLP
Respondents: Carmichael QC; Balfour & Manson
30 December 2015
Introduction
[1] The petitioner was the guardian in property and financial matters under part 6 of the Adults with Incapacity (Scotland) Act 2000 of Lisa Joanne Smart, who is referred to in the petition as “Lisa”, for an indefinite period, having been appointed on 25 July 2006. The respondents are a local authority within the meaning of the Social Work (Scotland) Act 1968 (“the 1968 Act”). Two of their decisions are challenged on the ground that the respondents acted in breach of their statutory duties in respect of Lisa’s care in the community. During the course of drafting this opinion, I was informed that, sadly, Lisa died on 7 December 2015.
The relevant statutory duties
[2] Section 12A(1) of the 1968 Act provides that, where it appears to a local authority that any person for whom they are under a duty or have a power to provide “community care services” may be in need of such services, the local authority must:
(a) assess the needs of that person for such community care services; and
(b) decide, having regard to the results of that assessment and taking account of certain specified matters, whether the needs of the person being assessed call for the provision of such community care services.
[3] Until the repeal of section 12B(1) of the 1968 Act on 1 April 2014, if a local authority decided that the needs of the person called for the provision of a community care service, and if the person was not of a description specified in regulations, the local authority had a duty under that section to make to the person, “in respect of his securing the provision of the service, a payment of such amount… as they determine to be appropriate”. From 1 April 2014, the duty under section 12B has been replaced by the duty, under section 5 of the Social Care (Self-Directed Support) (Scotland) Act 2013, to offer to such person the choice of a number of funding options, one of which is the making of such a payment.
The factual background
[4] Lisa was born on 2 November 1980. On 27 October 2002, whilst out on foot, she was struck by a motor vehicle and sustained serious head injuries. As a result of brain injury, Lisa was unable to walk or stand unaided. She was fed by a percutaneous endoscopic gastrostomy tube. She was unable to speak, but could communicate to a degree, using limited movements. She suffered from post-traumatic epilepsy. The petitioner, as Lisa’s financial guardian, raised an action against the driver of the motor vehicle. The action was settled for a payment of £5,100,000. The money received was placed into The Lisa Smart Personal Injury Trust, which was set up by deed of trust dated 19 June 2007. The maintenance of Lisa was not the sole purpose of the trust.
[5] Upon Lisa’s release from hospital, on or about 20 December 2005, she was cared for at Bandrum Nursing Home, Saline, Fife (“Bandrum“). Initially, the respondents paid for the costs of Lisa’s care while at the nursing home. Lisa did not have suitable alternative accommodation. The accommodation and care at Bandrum was provided by the respondents following an assessment by them under section 12A of the 1968 Act and in fulfilment of their duty under section 13A of the Act. On or about 23 May 2006, the respondents carried out a means test and ceased to pay for the care, other than by making a fixed rate payment of £65 per week. On or around 26 October 2006, Lisa’s capital had fallen below the relevant limit of £20,000, whereupon the pursuer invited the respondents to carry out a further financial assessment. After doing so, the respondents recommenced payments to Bandrum in respect of Lisa’s care and accommodation.
[6] Lisa’s parents were appointed her personal welfare guardians on 25 July 2006. In 2007, they proposed that Lisa be moved from the nursing home to a suitable property to be purchased for adaptation and to which they could also move and care for her with outside assistance. Such a property was purchased in September 2007. In September 2008 Lisa was moved from the nursing home to her new home in Dunfermline. By letter of 9 January 2009 to the petitioner, the respondents intimated that they would provide a payment of £43,600 per annum towards Lisa’s care needs, subject to annual or more frequent review. By letter of 23 August 2010 the respondents intimated that, as money from the settlement of the court action was being used to fund Lisa’s care package, joint funding from the respondents and the local health board would not be provided.
[7] By letter of 30 August 2010, the petitioner wrote to the respondents, making a new application for funding of Lisa’s care. By letter of 3 July 2012 the respondents produced a document, dated 25 April 2011, headed “eSSA Template – For Admin Input to SWIFT Reports Tab”. The document was an assessment, under section 12A(1)(a) of the 1968 Act, of Lisa’s needs at the time. Asserting that the respondents did not make a consequent decision under section 12A(1)(b) of the 1968 Act, the petitioner presented a petition for judicial review of the respondents’ alleged failure to make such a decision and any consequent decision under section 12B of the 1968 Act. The respondents did not enter the process or lodge answers. On 22 March 2013, the Lord Ordinary pronounced an interlocutor ordaining the respondents to make such decisions as appropriate. In this action, the petitioner avers that the interlocutor remains to be complied with.
The present dispute
[8] On their own initiative, the respondents carried out a further assessment of Lisa’s needs, under the provisions of section 12A(1)(a), as at 5 August 2013. The assessment was intimated to the petitioner on or about 4 September 2013. It contained details of Lisa’s disabilities and noted that Nurseplus attended Lisa’s daily needs. Nurseplus is a private commercial care provider. The petitioner avers that the assessment noted the following: Lisa used eye contact to communicate her feelings and wishes; during the night she required to be turned in bed several times; she required to be fed through button gastronomy with four bolus feeds daily; she required to have a catheter in place; Lisa had been diagnosed as suffering from type two respiratory failure and was fully dependent on a ventilator; she required a nebuliser up to six times daily, and chest physiotherapy four times daily; Lisa was unable to self-mobilise, or to communicate or attend to personal care without the full support of her care team; and Lisa obtained physiotherapy from a private provider.
[9] The petitioner avers that, on or about 31 October 2013, the respondents made a decision, under section 12A(1)(b), that Lisa’s needs did not call for the provision of any community care services as defined in section 5A of the 1968 Act. That decision was intimated to the petitioner by letter dated 31 October 2013, and is the first of the two decisions which are under challenge in these proceedings. It is averred that, in the same letter, the respondents intimated a decision, under section 12B of the 1968 Act, that no payment was appropriate. That is the second decision which is under challenge. The petitioner avers that, before making the decision under section 12B, the respondents “did not carry out any assessment (‘means test’) of Lisa’s ability to contribute to the cost of community care services” (as defined in section 5A of the 1968 Act). He further avers that the respondents did not assess or break down the compensation award for the purposes of a means test.
[10] The decision letter reads as follows:
“I refer to my recent letter to you of 1 October 2013 which was in relation to the re-assessment of need completed by a Social Worker from the local team and to the previous assessment which was carried out in April 2011.
As with the assessment carried out in April 2011, the most recent assessment concludes that the current Care Plan should remain in place as it adequately meets Lisa's assessed needs. On the basis of the assessment carried out in April 2013 which was forwarded to you on 6 September 2013 I am satisfied that there is no element of unmet need relating to Lisa at present. As such I am satisfied there is no requirement for the provision of services from the Council at this time. [The first decision.]
In carrying out the assessment and with the approval of Mr and Mrs Smart, Lisa's Welfare Guardians, the Social Worker consulted with a range of individuals involved with Lisa's care and support. In particular the views of relevant medical staff including dietician and Lisa's key nurse were considered. In addition the views of Lisa's carers and of Mr and Mrs Smart in their capacity both as Lisa's carers and her Welfare Guardians were ascertained and taken into account. It was considered Lisa lacked capacity to express a view herself.
I have also considered what payment the Council should make in terms of Section 12B of the Social Work (Scotland Act 1968). I have had regard to the fact that at present Lisa's needs are being adequately met and it would appear the means are available to provide for her care for the foreseeable future. In the circumstances it appears to the Council that no payment is appropriate in terms of S12B at present.
[The second decision.]
If Lisa's circumstances change then obviously we will review/reassess her needs at that time and if at that time any unmet needs are identified we will make any necessary arrangements to meet these needs given these changed circumstances.”
[11] Each of the decisions is...
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