JR138's (Acting by her mother and next friend) Application and in the matter of decisions of the South Eastern Health and Social Care Trust
| Jurisdiction | Northern Ireland |
| Judge | Scoffield J |
| Neutral Citation | [2022] NIQB 46 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 13 June 2022 |
1
Neutral Citation No: [2022] NIQB 46
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: SCO11874
ICOS No: 21/007977/01
Delivered: 13/06/2022
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF APPLICATION BY JR138
(ACTING BY HER MOTHER AND NEXT FRIEND) FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS OF THE
SOUTH EASTERN HEALTH AND SOCIAL CARE TRUST
___________
Ciaran White BL (instructed by the Children’s Law Centre) for the applicant
Philip Henry BL (instructed by the Directorate of Legal Services) for the respondent
___________
SCOFFIELD J
Introduction
[1] This is an application for judicial review by which the applicant, a now 15
year old girl with complex health and care needs, seeks to challenge the non-
provision to her of certain services which she contends the respondent, the South
Eastern Health and Social Care Trust (“the Trust”), is required to provide to her in
compliance with a number of statutory duties. The applicant’s case was split down
into four separate areas of challenge, which she categorised as (a) the ‘failure to
deliver’ issue; (b) the ‘failure to reassess’ issue; (c) the inadequacy issue; and (d) the
direct payments issue. What is meant by each of these terms is discussed in further
detail below. In light of the applicant’s age and vulnerability, I acceded to an
application that she be anonymised in these proceedings.
[2] This case represents an example of a now depressingly familiar species of
litigation which is coming before the Judicial Review Court with increasing
frequency, namely cases where a person (often a child) in need contends that a
health and social care trust is not providing them with the services to which they are
entitled and which they desperately need. There are a variety of reasons for such
cases. In recent times, the Covid-19 pandemic has had an undoubted effect on the
2
availability of social and nursing care provision and services, partly through staff
shortages and partly through reduced capacity owing to public health measures
implemented to combat the spread of coronavirus. In other cases, however, there is
simply a lack of facilities or staff to meet the demand of the number of individuals
with complex needs at any one time. Often, despite the very best efforts and
intentions of those professionals involved, families are not receiving the level of help
they need and deserve. This can understandably lead to desperation and despair.
At the same time, the court not infrequently detects an unwillingness or inability to
recognise the constraints under which trust officials and carers are working.
Litigation is often thought to be an effective means of increasing pressure on trusts
to provide or improve services, or to secure some degree of priority in the allocation
of scarce resources or placements. For a variety of reasons, some of which are
discussed further below, this is often unsatisfactory for pretty much everyone
involved.
[3] In this case, Mr White appeared for the applicant; and Mr Henry appeared for
the respondent. I am grateful to both counsel for their helpful written and oral
submissions.
Factual Background
[4] The applicant was born with a chromosome disorder and was later diagnosed
with Pitt-Hopkins syndrome. She is non-verbal and has a variety of health
conditions including chronic lung disease, scoliosis, epilepsy and oesophageal
disconnection.
[5] The applicant underwent spinal surgery in early September 2019. She was
discharged from hospital only in November 2019. Unfortunately, after this surgery,
there was a significant escalation in the applicant’s needs as she now has a
significant degree of paralysis, very serious seizures and a life-threatening condition
called autonomic dysreflexia. The grounding affidavit of the applicant’s mother and
next friend explains her care needs, which are both constant and intensive. It is
unnecessary to set these out for the purposes of this judgment. However, the
applicant requires supervision or assistance with virtually all aspects of her personal
care and daily living, as well as regular administration of medicines and overnight
ventilation.
[6] Over the months following her surgery, there were a number of adjustments
to the applicant’s package of care in the home, culminating in a multi-disciplinary
assessment in July 2020 which resulted in the current care package which the Trust
has assessed as appropriate for her (“the July 2020 package”). The applicant’s
mother’s evidence describes this package as requiring four staff to be working
consistently (with two assigned to night duty and two assigned to day duty),
although with only one person on duty at any one time. The applicant’s mother’s
evidence is that, when a carer is on duty, the expectation is that she will be on hand
to give assistance in carrying out some tasks which require two people (such as
3
operating a hoist which the applicant uses and certain washing, dressing and
hygiene tasks). For this reason, the applicant’s mother contends that she is regularly
required to assist with the applicant’s care even when a carer is on duty. Her
position is that she is required to provide constant, or near constant, care for the
applicant. Even where a care assistant is present, her evidence is to the effect that
she is still required to be on hand at least six times in each shift to assist the carer
with placing the applicant into the hoist which is used to move her.
[7] The respondent’s evidence takes issue with the suggestion that two persons
are regularly required. The Trust says the only task requiring two carers is the use of
the hoist; and that this operation is not regularly required, takes only several
minutes, and “is not considered to be a significant commitment of time.” The
applicant’s mother’s rejoining affidavit says that she is “particularly dismayed” at
the respondent’s evidence in this regard and that she thinks “it shows the trust’s lack
of real knowledge” of the applicant’s care. She then gives details of a variety of
additional tasks or operations which require hoisting. This clear conflict of evidence
in relation to the demands on the applicant’s mother is a matter of concern. In light
of it, it is hard for me to understand precisely how onerous, if at all, the applicant’s
mother’s responsibilities are when a carer is present in her home to provide care to
the applicant. I proceed on the basis that these responsibilities are sporadic rather
than constant; that they are more frequent during the day than during the night; and
that they are greater than the respondent’s evidence (referred to above) suggests, but
also less onerous than the applicant’s initial evidence may have presented: that i s to
say, that the truth lies somewhere in the middle.
[8] The applicant has both medical needs and social care needs. Some of her
medical needs can be met at home. It has been assessed by the respondent that they
can be met by a Band 3 carer (i.e. a carer who is not a nurse), provided they have a
certain degree of training and competence (which is assessed by a nurse). The
applicant’s mother disagrees with this assessment and would wish the care to be
provided by qualified nurses; but those responsible for the applicant’s medical care
consider that a nurse is not required to provide this care.
[9] The July 2020 package includes a carer coming into the applicant’s home
seven nights per week from either 7.30 pm (in the case of agency staff) or 8.30 pm (in
the case of Trust staff) who then care for the applicant through the night until 6.30
am. This is designed to allow the applicant’s mother to sleep seven nights per week.
[10] The July 2020 package was put together at a time when the applicant was not
attending school and was therefore generally in the family home during the day. It
also made provision for a carer to attend the applicant’s home five days per week to
look after the applicant from 8.30 am to 4.00 pm on those days. This was to allow the
applicant’s mother to do the school run with the applicant’s brother, to undertake
her other domestic and additional responsibilities and to enjoy some time to herself.
The five days when daytime care was provided were originally Monday to Friday;
but the Trust agreed to change one of these days to the weekend at the request of the
To continue reading
Request your trial
2 cases
-
JR233's Application
...of Hospital Patient) (No 2) [2013] NIQB 7; JR127’s Application (A Person under Disability) [2021] NIQB 23; JR139 [2021] NIQB 76 and JR138 [2022] NIQB 46. [73] Properly analysed, the applicant’s case resolves to an allegation of breaches of obligations imposed under the relevant statutory pr......
-
JR248's Application (Leave Stage) and in the matter of decisions of The Secretary of State for the Home Department
...factual investigation and fact -finding to which the judicial review process is ill suited (see, for instance, Re JR138’s Application [2022] NIQB 46, at para [25]). In addition, I accept the proposed respondent’s submission that, in determining in its discretion whether or not to grant leav......