R (AM) v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANSTON |
| Judgment Date | 02 March 2009 |
| Neutral Citation | [2009] EWHC 688 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9165/2008 |
| Date | 02 March 2009 |
[2009] EWHC 688 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: MR JUSTICE CRANSTON
CO/9165/2008
Mr N Armstrong (instructed by Public Law Solicitors) appeared on behalf of the Claimant
Mr S Knafler (instructed by The City Council) appeared on behalf of the Defendant
Introduction:
This judicial review concerns the impact of the Disability Discrimination Act of 1995 (“the DDA”) on community care assessments. Initially the claimant challenged the continuing failure of Birmingham City Council (“the council”) to reassess his community care needs in sufficient time to attend university in September of last year. He had requested the defendant's social services department to provide him with a particular care package. When the matter came before me at a hearing on 15 December last year I refused permission to proceed with judicial review on public law grounds. By then the council had carried out a further assessment, dated 11 December 2007. In my opinion it could not be said —and no appeal has been taken on the point —that that assessment was irrational in a public law sense, affected by procedural irregularity or otherwise flawed. However, I gave permission for the judicial review to proceed to a hearing because I was troubled whether sufficient regard had been paid to the DDA in the council's deliberations.
As a result of the permission hearing, the issues were refined. There were two. The first was whether the council's decision to refuse to provide the claimant with a mobile hoist in order to access toilet facilities at the university conformed with its DDA duties. The second issue was whether the University of Birmingham (“the university”) conformed with its DDA duties in refusing to arrange for a second person to assist him transfer from his wheelchair to a hoist if toileting equipment was required. I joined the university as a defendant. Since that time, however, the claimant and the university have agreed a consent order but it is an interested party again. Under that order the university agreed that if the claimant succeeded in his judicial review against the council, and if the council were to be ordered to reconsider its decision of 11 December, the university would reconsider whether it would provide the claimant with a second personal carer to assist with use of the hoist.
Background
At the time the claim was begun the claimant was 18 years old. He has Duchenne muscular dystrophy, diagnosed in 1996, congenital hypothyroidism and heart problems. He cannot move his lower limbs by himself and he has limited movement in his arms and hands. He is dependent on others for all aspects of his care. He is able to operate an electric powered wheelchair. However, to transfer from his chair he uses a ceiling track hoist and he requires the assistance to do so from two appropriately skilled carers. He also needs the assistance from carers to help with eating and drinking, bathing, his daily stretching exercises and toileting.
When he turned 18 in 2007 the claimant's care was transferred from children services to adult and social care. In January 2008 his need for NHS continuing care was reassessed by his primary care trust. The assessment report concluded that he no longer met the NHS eligibility criteria but that his needs could appropriately be met by a package of social care. In relation to his toileting the assessment said:
“The claimant said that on occasions he is incontinent with either urine or faeces. He will wear an incontinent pad as he feels it is necessary.”
The claimant was not happy with the changes and asked social services to review his care package.
Meanwhile, the claimant had successfully applied to the university to undertake a bachelor of science course in computer science. The university told him that they would help with specialist equipment and academic support, such as note takers, and that disabled student allowances were available to assist with the cost and specialised transport. However, they told him that the council's social services would need to provide a carer to assist with the personal care which he required. In the claimant's view the carer would need to be with him at all times to help with activities such as eating and toileting. This was in addition to his morning and evening care visits. He would also need to have specialist equipment available on campus, including a hoist and a bed. There was some delay in addressing these issues. It is unnecessary for me to make any finding with regard to responsibility for this.
On 14 July 2008 there was a meeting between the university, the manager of the physical disability team at the council, the claimant and his mother. At that meeting the council's representative told them that her team could only deal with emergencies at the moment so there would be no reassessment of his needs. She also said that because the claimant had already been approved for the maximum package from the independent living fund there could be no increase in the number of care hours he would receive. At the July meeting the claimant says that he stated that he would need a toilet, changing table and a hoist, and it was agreed that the council's representative would make a referral to a social services occupational therapist to assess exactly what equipment was needed.
In mid August 2008 the claimant instructed Public Law Solicitors to assist him. Later in August they wrote a letter before claim to the council regarding the required assessment and care plan. In September the council conducted an assessment. It was a social work assessment of some 24-pages in accordance with the Fair Access to Care Standards explained subsequently in this judgment. Those present at the assessment were the claimant, his mother, a representative of the council and his social worker, Mr Bennie. The claimant's college, Cadbury college, and Acorns Children's Hospice were consulted.
The assessment contained a great deal of information about matters such as the claimant, his communicating, his regular contacts, his current forms of support, his routines, his home environment and his mobility. Under a heading “additional information and observations” the assessment referred to the claimant's toileting. The report writer said that she had spoken to Cadbury College and she had been informed that the claimant coped while attending the college and managed with only one carer throughout his time there. The college had purchased a hoist for him to use if he needed it, but throughout his time at the college it had remained in its packaging. The assessment went on to opine that when the claimant attended university he would need a carer with him during his core hours of 9 to 5 to assist with personal care and toileting.
As an appendix to the assessment there is what is called a fair access to care services summary. One heading is autonomy, the control a person has over their immediate situation and the extent to which they are able to make and act upon informed choices. Listed there is the need for one-to-one care while the claimant is at university, which is required, it is said, because otherwise he will not be able to attend courses if care is not provided, and that would seriously impact upon his independence, confidence and well-being. The risk level in relation to that is stated to be critical 3. That is explained subsequently in the assessment as:
“There is or will be little or no choice or control over vital aspects of the immediate environment.”
The claimant attended the induction days at the university on 12 and 18 September 2008. On both days the social worker arranged for a care worker to accompany him and to provide transport. However, late in the day, on 18 September, the council told him that arrangements would not be in place for the start of his course on 22 September. On 19 September the university said that they would cover travel costs and educational needs support until his disabled students allowance was in place. They also said that they would for the moment cover the cost of the specialist equipment.
There was a meeting on the university campus on 28 October 2008 in the disabled toilet facility in the Nuffield Building at the university. Present were the claimant, his mother, an occupational therapist and a disability officer. The occupational therapist assessed the suitability of the facility, took measurements and stated that she felt there was adequate space to accommodate all the necessary equipment.
Then, on 13 October, a learner support agreement was completed by the university. This was a pre-admission assessment of support needs for the claimant. Under one heading, “personal care”, the agreement said that the claimant required a fully adapted toileting facility with necessary equipment to enable his personal care to be managed.
The occupational therapist's report became available on 21 November. Without going into the details, the claimant was said to be continent of faeces and had a bowel regime in place which involved him using the toilet in the evenings at home when he had two carers visit: “This already established regime means there should be no need to duplicate this evening routine throughout the day”. The occupational therapist's report went on to say that if the claimant did need bowel care during the day at university then the equipment as specified in the report would...
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