R MG (by her litigation friend Jose Antonio Dionisio Carvalhosa) v London Borough of Brent
| Jurisdiction | England & Wales |
| Judge | Steven Kovats |
| Judgment Date | 22 June 2018 |
| Neutral Citation | [2018] EWHC 1777 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/802/2018 |
| Date | 22 June 2018 |
[2018] EWHC 1777 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Steven Kovats QC
(Sitting as a Deputy Judge of the High Court)
CO/802/2018
APPEARANCES
Ms F. Williams (instructed by Campbell-Taylor Solicitors) appeared on behalf of the Claimant.
Ms S. Rickard (instructed by the London Borough of Brent) appeared on behalf of the Defendant.
THE DEPUTY JUDGE:
The claimant, who has been anonymised as “MG” currently receives a care package funded by the defendant local authority consisting of 5hours of care a week (being 7.5 hours a day for six days a week) from her paid carer. The defendant proposes gradually reducing the level of support to 18 hours a week (being 3 hours a day for six days a week). That proposal was communicated to the claimant in a letter from the defendant to her dated 6 December 2017. The defendant's proposal was based on an “ASC — Supported Self-Assessment/Review” form completed by the defendant on 21 November 2017.
On 21 February 2018 the claimant filed her judicial review claim form and an application for urgent interim relief to prevent the defendant reducing her care package. Section 3 of the claim form described the decision under challenge as:
“1. The defendants' failure to conduct a lawful assessment of the claimant's needs.
2. The defendants' failure to lawfully meet the claimant's needs and to prepare a lawful care plan.”
The date of the decision under challenge was given as 21 November 2017. At that stage there two defendants, the Council and Central and North West London NHS Foundation Trust. By consent order sealed on 9 March 2018, the claim against the Trust was withdrawn and it was instead named as an interested party. In the event, the Trust has taken no active part in these proceedings.
On 21 March 2018, Anne Whyte QC, sitting as a Deputy High Court Judge refused permission ground 1, that is the challenge to the lawfulness of the needs assessment; granted permission on ground 2, that is the failure to produce a care plan, and refused the application for interim relief. On 6 April 2018, on the claimant's renewed application, I granted permission on ground 1 and granted interim relief, requiring the defendant to continue to fund 51 hours a week of care, and I expedited the substantive hearing.
The facts
The claimant was born in 1954. She has a diagnosis of schizophrenia and of upper limb arthritis. In about 1989, she met Jose Antonio Dionisio Carvalhosa and they began a relationship. They had four children, the oldest born in 1990 sadly died in 1994. The other three were born in 1996, 1998 and 2000. All are now adult, although the youngest still lives with the claimant.
The claimant comes from Colombia, and her native language is Spanish. Mr Carvalhosa comes from Portugal. There is uncertainty about the level of the claimant's command of English. In almost all the defendant's dealings with the claimant, Mr Carvalhosa has acted, or sought to act, as the claimant's interpreter, rather than the claimant speaking for herself.
Mr Carvalhosa describes himself as the claimant's former partner. As appears below, he is still extensively involved in the claimant's daily life. He is the claimant's litigation friend in the present proceedings.
Mr Carvalhosa says that in around 2009, there was an incident when the claimant suddenly ran across a road heedless of traffic because she thought someone on the other side had called out to her. He says that there were two further incidents in 2014. In one, she tripped while going down the stairs when she thought there were strange people in the house. In the other, she ran out into the street partially clothed because she believed people were having a party in her house, and she rang neighbours' doorbells to complain about the noise.
He says that in 2015 there was an occasion when the claimant ran outside wearing only a shirt and verbally abused the bin men who were emptying the rubbish.
On a date not evidenced before me but which Mr Carvalhosa says was in 1992, the Independent Living Fund began to fund a care package for the claimant. There is before the court an ILF support plan dated 17 February 2014.
It records an assessment review of the claimant's care needs. I agree with the defendant's submission that this document shows that almost all the views expressed in it are those of Mr Carvalhosa rather than the direct views of the claimant herself, whom the review describes as “award user (seen briefly)”. Mr Carvalhosa is described “ ex-partner/carer”. The significance of this is that it is this review that put in place the current package of funding 51 hours care a week. It is the defendant's case that the driving force behind the present claim is Mr Carvalhosa's conviction that that care support package should not be reduced because the claimant's circumstances have not changed since that ILF assessment.
On 30 June 2015, the ILF closed. In its place, local authorities assumed responsibility for funding care packages, under the Care Act 2014. Arrangements are in place for a tapering transfer to the local authorities of the funding that central government provided to the ILF until 2020, but I have not been taken to the detail of those arrangements, which are not relevant to the present claim.
In anticipation of this transfer from the ILF to local authorities, the claimant was referred to the defendant's Adult Mental Health Services in 2013. On 11 September 2013 she was seen by the defendant's multi-disciplinary team, including Dr Bahia, a consultant psychiatrist at the interested party NHS Trust. The report of that meeting gave a provisional diagnosis of paranoid schizophrenia, discharged the claimant back to the care of her GP, and described the agreed care plan as being to ask claimant's GP to review her physical health and to consider increasing her dosage of antipsychotic medication.
On 6 September 2016 Niamh Toner, one of the defendant's occupational therapists, made a home visit to the claimant to assess her mental capacity. Ms Toner's file note of that visit states that it was terminated because there was a clear conflict of interest with Mr Carvalhosa who, as usual, was present and acted as the claimant's interpreter, which prevented the completion of a valid assessment.
On 16 January 2017, Idris Formah, a community psychiatric nurse, made a home visit to the claimant. The report of his visit included the statement:
“Although not fully assessed [the claimant] appears to lack capacity to understand, retain or communicate information relayed to her. She appears to be disorientated to time and place during the visit. She kept saying, ‘I don't know’”.
On 22 February 2017, the defendant wrote to the claimant to inform her that following the transfer of responsibility for her care package from the ILP to the Council, the Council needed to review her social care needs.
On 18 April 2017, Dr Almaraz, a consultant psychiatrist at the interested party Trust and a member of the defendant's multi-disciplinary team, saw the claimant. Her report of that appointment reads:
“Seen today. Diagnosis: paranoid schizophrenia (principal diagnosis). Under section 4 detail any changes since last review. Seen today. She came with her ex-husband and carer, Joseph Carvalhosa. I conducted the interview in Spanish, the claimant's mother tongue. Mr Carvalhosa talked in English and I translated back into Spanish to her. I have known the claimant Jose before when they used to attend the PRCMH outpatients department in 2004. In all this time the claimant's mental health has remained stable, with no hospital admissions and compliance with medication has been ensured by the carers which also attend to her daily needs. This arrangement has been ongoing for many years and it is difficult to establish whether the claimant is able to care for herself without their input.
In terms of her mental health, she complains of hearing voices and which she accepts are inside her head, and only hears them when alone or not distracted in conversation with others. She does not talk to the voices because she feels scared. She admitted that she thinks a lot and of late she has been worried about her care package having to be reviewed. She does not want to be reassessed and would prefer for things to remain the same.
Her ex-husband feels strongly that the claimant has a high level of need, and to review the current arrangement would be in detriment to her health. On examination the...
To continue reading
Request your trial