R D v Worcestershire County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 09 August 0013 |
| Neutral Citation | [2013] EWHC 2490 (Admin) |
| Year | 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 2013 |
| Docket Number | Case No: CO/44/2013 |
[2013] EWHC 2490 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
Mr Justice Hickinbottom
Case No: CO/44/2013
Ian Wise QC and Stephen Broach (instructed by Irwin Mitchell LLP) for the Claimant
Andrew Sharland (instructed by the Head of Legal & Democratic Services, Worcestershire County Council) for the Defendant
Hearing dates: 18-19-July-2013
Further written submissions: 22, 24 and 29 July 2013
Approved Judgment
Introduction
These are times of considerable financial stringency, challenging for both those who rely upon public services and those who provide them. This is another claim that concerns the consequences of reduced public funding of services, this time adult community care in Worcestershire.
The provider of these services is the Defendant authority ("the Council"). In 2010–11, the Council's budget was £306m of which the amount for adult care was £116.4m. In December 2010, the Coalition Government announced the Local Government Settlement, which set limits on the central government grant for local authorities and local authority spending. Under the Settlement, the Council was required to make likely savings of £ 60m-70m over four years. Current estimates are somewhat higher, identifying a need to save at least £20m per year, every year, to 2015–16. Like other authorities, the Council took the inevitable view that the required level of overall savings could not possibly be met without a contribution from the adult social care budget.
On 8 November 2012, it adopted a "Policy for Determining the Usual Maximum Expenditure for Non-Residential Care Packages" ("the Policy"), under which, absent exceptional circumstances, the maximum weekly expenditure on care in the community for an adult under 65 years of age will be "no more than the net weekly cost… of a care home placement that could be commissioned to meet the individual's assessed eligible needs". It was a policy which the Council had in substance applied to adults over 65 years of age since 2008.
The Claimant, D, was born on 26 April 1996, and so will turn 18 next year. He has a number of needs, deriving from medical conditions which include learning disability, attention deficit hyperactivity disorder, auditory processing difficulties and epilepsy. His parents are separated. His mother is his primary carer, and his litigation friend in this claim. She is concerned to ensure that D has appropriate care as he moves into adulthood. She considers he will need a very high level of care, 24 hours per day; and she has doubts that the arrangements under the Council's new adult community care policy will properly address his needs. Those concerns have been compounded because D's mother has recently been diagnosed as having cancer, which has, she says:
"… reinforced how important it is for me to ensure that appropriate arrangements are made for [D's] future and transition to adulthood in the event that anything were to happen to me." (20 December 2012 Statement, paragraph 20).
In the circumstances, that is entirely understandable.
Those concerns are about the substance of the Policy. However, in this claim, although D through his mother has reserved his rights, no challenge is made to that. Two grounds of challenge are advanced, both procedural in nature, namely that the Council, in adopting the Policy, (i) used a consultation process that was materially defective, notably in that it failed to provide consultees with sufficient information to enable them to make a sufficiently informed response to the proposal; and (ii) failed to comply with its public sector equality duty ("PSED") under section 149 of the Equality Act 2010.
The Council denies that it acted unlawfully in either respect.
The Council also opposes the claim on the basis that the Claimant has no locus to bring it. First, it submits that it is a legal abuse for this claim to be brought in the Claimant's name, when the true complainant is not D but his mother. There is no evidence at all from D himself. It is his mother who has expressed fears that the Policy will lead to those who benefit from adult care services — including, from next year, D himself — being put to a choice of receiving less than is required to meet his assessed eligible needs at home, and going into residential care. It is she who, in this claim, complains that the consultation process was unlawful, and it is she who says she wishes there to be further consultation at which she can make her views known before a new decision on the Policy is taken by the Council.
Second, the claim is said to be an abuse of process because D is not subject to the Policy yet, and he will or may never be. The Council accepts that D is a disabled person; but it does not accept that his needs as an adult will be as great as his mother suggests. In support of that contention, it relies on (i) the fact that D's reading age and comprehension age has been assessed at not much lower than they should be for his chronological age; (ii) his educational needs have been met in mainstream education without a Statement of Special Educational Needs; and (iii) a recent core assessment of D's needs by social workers in the Council's Young Adults Team and Children with Disabilities Team. That assessment was made in the context of entitlement under the Children Act, but, on the basis of its factual findings, the Team Manager of the Young Adults Team (Jonathan Monk) also assessed D's needs as an adult next year under the relevant eligibility framework. He concluded that none of his needs is sufficiently severe to be eligible for assistance (i.e. none of the needs falls within the critical or substantial categories, in his opinion none being higher than low level: see paragraph 13 below), so that, in Mr Monk's professional view:
"It is clear from the core assessment that [D] is very unlikely to be eligible for adult social care services at all because he does not have substantial or critical needs as defined in the… guidance…. It is clear beyond doubt that [D] would certainly not require a level of support that would engage the Policy in any way." (27 June 2013 Statement, paragraph 11).
D's mother maintains that D will require very substantial care support as an adult; and it is submitted by Mr Wise QC on D's behalf that there is at least a risk — his mother maintains, a likelihood — that he will fall within the scope of, and be affected by, the Policy when he turns 18 next year. However, that view is unsupported by any expert or professional evidence; and, in any event, the Council relies upon the principle that, in judicial review proceedings, where there is a factual dispute, the court generally accepts the evidence of the defendant. Because of the uncertainty created by this current challenge, the Policy has not yet been implemented; but the Council points out that no one who, subject to implementation, would be the subject of the Policy has sought to challenge it, or, even more pertinently, the processes by which it was adopted. Those who have made statements in support of the Claimant in this claim, whilst, like D's mother, being concerned about the substance of the Policy, make no criticisms of the processes by which it was adopted.
There seems to me to be, at the very least, some room for argument in respect of these procedural matters raised by the Council. However, the debate before me, properly, focused on the merits of the claim; and it is those merits with which I will deal first.
With regard to those merits:
i) On 14 February 2013, Males J refused permission to proceed. Kenneth Parker J granted permission, and ordered the hearing to be expedited, at a hearing on 16 May 2013. At the substantive hearing, Ian Wise QC and Stephen Broach appeared for the Claimant; and Andrew Sharland for the Defendant; and I am certainly grateful for their helpful submissions.
ii) Mr Sharland objected to (a) statements of Lucy Series (an author of the WeareSpartacus report, "Past Caring", referred to below: see paragraph 41), Emma Harrison (Assistant Director of External Relations of Mencap) and the Wednesday Comet Group (which describes itself as "a self-advocacy group for people with disabilities") on the basis that their evidence is, variously, irrelevant, inadmissible and bad on grounds of having failed to comply with the Civil Procedure Rules; and (b) further evidence and submissions made by Mr Wise after the hearing, with regard to the Council's policy for ascertaining an individual community care service user's personal budget prior to adoption of the Policy. However, although I have ignored purely opinion evidence in the statements, Mr Sharland has responded to this material; and I have considered it appropriate to take into account, in the Claimant's favour, all of the other material.
The Legal Background
Section 29 of the National Assistance Act 1948 imposes a duty on local authorities to make arrangements for promoting the welfare of individuals who are substantially and permanently handicapped through illness or disability. Section 2(1)(a) of the Chronically Sick and Disabled Persons Act 1970 extends that obligation to "the provision of practical assistance for that person in his home", where that is necessary to meet the needs of that person. In support of the section 29 obligation, in respect of anyone in its area who appears to be in need of community...
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