R (P) v London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | David Pievsky |
| Judgment Date | 15 November 2022 |
| Neutral Citation | [2022] EWHC 2886 (Admin) |
| Docket Number | Case No: CO/2425/2022 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 2886 (Admin)
David Pievsky KC
sitting as a Deputy Judge of the High Court
Case No: CO/2425/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Laura Shepherd (instructed by Sinclairslaw for the Claimant
Joshua Swirsky (instructed by London Borough of Croydon) for the Defendant
Hearing date: 1 November 2022
This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 15/11/2022
David Pievsky KC (sitting as a Deputy Judge of the High Court):
Introduction
The Claimant is 27 years of age. She lives with Autistic Spectrum Disorder (“ASD”), absence epilepsy, learning difficulties and a number of other significant disorders and anxieties. She brings this application for judicial review of her local authority by her litigation friend and father (“SP”).
The Defendant authority is responsible under the Care Act 2014 (“the 2014 Act”) for assessing and meeting the needs of adults who meet the eligibility criteria. It accepts that the Claimant has needs, that she meets the criteria, and that it is required to meet such of her needs as cannot be met by her family.
This case is about the amount of support which the Defendant has decided to provide or fund. The Claimant's case is that the Defendant's decision to fund 35 hours per week of support is unlawful, and that it has failed to meet her needs contrary to the requirements of the 2014 Act. The Defendant's case is that its decision was lawful, and/or that any unlawfulness made no difference to the outcome.
The factual background
The Claimant is a 27 year old woman. She has diagnoses of ASD, and a number of other complex conditions and difficulties. She lives with her parents, who support her. Her father works full time and in practice much of her day-to-day support is provided by her mother. The Claimant has received additional support from the Defendant for a number of years. She is currently receiving £437.50 per week by way of direct payments, equivalent to 35 hours of support.
The Claimant previously attended a specialist college. She received substantial day-today help with her needs there. She was due to leave the college in July 2020. In fact she left in March 2020, because of the pandemic. In consequence there was an increased need for her parents to care for her at home. The Defendant undertook a carer's assessment of the Claimant's mother in March 2020, shortly before the Claimant left college.
On 6 October 2021 the Defendant, following a meeting with the Claimant and her family, recorded an analysis of the Claimant's needs and how it might properly meet those needs (“the October 2021 analysis”). This document referred in detail to the Claimant's need for support with various important aspects of daily life, including the need to: maintain personal hygiene, wear appropriate clothes, manage toilet needs, eat and drink properly, be aware of hazards, develop social relationships, and access work, training, education or volunteering. It noted her vulnerability to exploitation and abuse (including but not only online). It concluded with a section indicating that the Claimant needed:
i) “ 24 hour support”, for “ personal care, eating and drinking, and home and living”);
ii) “ up to 7 hours support, 7 days a week”, to assist with accessing and engaging in work, training, education or volunteering;
iii) “ up to 7 hours support, 7 days a week”, to assist her to maintain relationships and engage in normal everyday activities;
iv) An “ indicative” support budget of £1,200 per week.
However, as set out in more detail below, the Defendant's position is that the indicative support budget set out in the October 2021 analysis was wrong.
SP wrote to the Defendant on 25 January 2022 and again on 24 February 2022. He asked the Defendant to undertake a review of support payments going back to August 2019, pointing out that it had agreed to increase those payments from 30 hours per week to 35 hours per week, but had subsequently failed to do so. He also asked the Defendant to finalise a support plan for the future, reflecting the fact that the Claimant was no longer in full-time education. He asked for the Claimant's existing 12 hours of overnight respite support per week to be added to the proposed plan. His understanding was that those 12 hours of overnight support, when added to the other hours of support specified in the assessment, would confirm and justify the overall budget of £1,200 per week, representing a total of 96 support hours at an hourly rate of £12.50 per hour. He provided a detailed document (which he called an outline support plan) listing the likely activities in which the Claimant would engage each week, and the assistance she would need with them, were she to receive the 96 hours of support sought.
On 25 February 2022, the Defendant responded. It stated again that the “ Indicative Budget” was not legally binding and did not determine the Support Plan amount. It added that any increase in the support package would be subject to “ review / reassessment”. The Defendant asked for a more specific breakdown of how the support payments were being spent, what additional services the family required, and why.
By that time, although the Claimant and her family did not know it, a Care and Support Plan (“CSP”) had in fact been completed. It was dated 14 February 2022. The CSP was not in fact provided to the Claimant's family until after these proceedings were commenced. It set out the Defendant's “ weekly commitment” as being 35 hours per week (or £437.50, at £12.50 per hour). It stated that the Claimant “ will achieve her day-to-day outcomes as well as her long-term outcomes”. This followed a meeting of a funding panel of the Defendant, in which the much higher level of support proposed in the October 2021 analysis had been rejected and replaced with a package amounting to 35 hours per week. The Claimant and her family were not told about the meeting.
SP replied to the Defendant's 25 February 2022 email on 28 February 2022, setting out details of the support available to the Claimant, the Claimant's need for “ 24/7” support (which he believed the Defendant had correctly identified in the October 2021 assessment), and a summary of how the Claimant's skills and welfare would be improved with the additional support requested.
On the same day, the Defendant emailed SP referring to the support that the Claimant received from her parents (which needed to be factored into any assessment of support to be provided by the local authority), repeating that the “ indicative budget” was not binding, and stating that the Claimant's current agreed budget was £437.50 per week, equivalent to 35 hours of support. It asked SP to provide a breakdown of how the £437.50 was being spent, and details of the additional support he was requesting so that the request could be considered.
SP replied to the effect that he was not sure what else he could say, since the Defendant already had the relevant information contained in the assessments, reports, and SP's February 2022 outline support plan, but he maintained his request for the Defendant's panel to consider his request “ for additional support” for the Claimant.
The pre-action correspondence
On 23 March 2022 the Claimant through her solicitors sent a letter before claim, asking the Defendant to agree to produce a care plan identifying her need for 96 hours per week of additional support (i.e. support from non-family members), at a cost of £1,200 per week. The Claimant also sought compensation for what was said to be the Defendant's failure to provide for her care and support needs.
The Defendant on 24 March 2022 informed SP that its funding panel had “ not agreed” with the “ previous assessment” of “ 24 care and support of Direct payment [sic]”. It stated that the best way to resolve the dispute would be to reassess the Claimant's needs. It stated that this was the only way of changing the Defendant's funding panel's stance.
SP declined this offer on the basis that there appeared to be no need to put the Claimant through a further assessment of her needs when those needs had not changed and were accurately reflected in the Defendant's own October 2021 analysis.
On 7 April 2022, in its formal response to the letter before claim, the Defendant stated that the “ indicative budget” in the October 2021 analysis had “ been put together and authorised erroneously”. The Defendant had decided that the errors “ need to be rectified and recalculated”. The Claimant through her solicitors on 4 May 2022 confirmed that their position was that a reassessment of need would not be the right way forward, since the October 2021 analysis had (in her family's view) accurately reflected her needs, and there had been no reasonable explanation of how the assessment had been wrong.
The claim
The claim form, dated 6 July 2022, identified the decisions sought to be reviewed as follows:
“ a. the Defendant's ongoing failure to meet the Claimant's needs pursuant to section 18 of the Care Act 2014…;
b. The Defendant's ongoing failure to undertake an assessment of the Claimant's carers' support needs pursuant to s.10 of the 2014 Act in a timely manner or at all;
c. The Defendant's unreasonable attempt to revoke the Claimant's assessment of need dated 6 October 2022; and
d. the Defendant's ongoing failure to prepare a care and support plan within a reasonable time, pursuant to s.24 of the 2014 Act.”
The proposed grounds of claim were, in summary as follows:
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