R VI v London Borough of Lewisham
| Jurisdiction | England & Wales |
| Judge | Mr Andrew Henshaw |
| Judgment Date | 15 August 2018 |
| Neutral Citation | [2018] EWHC 2180 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1810/2018 |
| Date | 15 August 2018 |
[2018] EWHC 2180 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Henshaw QC (sitting as a Judge of the High Court)
Case No: CO/1810/2018
Leonie Hirst (instructed by GT Stewart Solicitors & Advocates) for the Claimant
Rhys Hadden (instructed by London Borough of Lewisham Legal Services) for the Defendant
Hearing date: 27 June 2018
Judgment Approved
Mr Andrew Henshaw QC:
| (A) INTRODUCTION | 2 |
| (B) FACTS | 3 |
| (1) Events from 2011 to 2017 | 3 |
| (2) The assessment process in 2018 | 11 |
| (C) LAW | 16 |
| (D) THE PARTIES' RESPECTIVE CASES IN OUTLINE | 26 |
| (E) DISCUSSION | 27 |
| (1) Irrationality/reasons | 27 |
| (2) Care Act sections 1(2), 9(4) and 1(3) | 29 |
| (3) Failure to assess against eligibility outcomes | 30 |
| (4) Failure to cooperate with other services | 31 |
| (F) CONCLUSION | 32 |
(A) INTRODUCTION
The Claimant applies for judicial review of an assessment (or reassessment) of needs completed by the Defendant London Borough of Lewisham pursuant to section 9 of the Care Act 2014 (“ the Act”) on 27 March 2018.
The Claimant is a 55-year-old woman with muscular dystrophy, who is bed and wheelchair-bound and requires carer support for all personal care. The challenged assessment, which was issued in draft form on 7 February 2018 and finalised on 27 March 2018 (“the assessment”), confirmed a reduction in her care package from 104 hours to 40 hours of care per week which in practice had occurred in August 2017. The Claimant argues that the assessment was irrational, and/or unlawful in that it failed to comply with the Care Act 2014 and associated regulations, because:
i) the Defendant's conclusion that the Claimant's needs for care and support could be met through a reduction of over 50% in her carer hours was irrational. The Claimant's condition is degenerative and cogent reasons were therefore required for concluding that her care needs had reduced from the previously assessed level. The basis on which the Defendant asserts that the Claimant's needs had hitherto been ‘over-provided’ was seriously flawed;
ii) the assessment failed to give proper consideration to the factors in section 9(4) of the Act, including the wellbeing factors in section 1(2);
iii) the Defendant failed to have regard to the need to prevent additional care needs arising through deterioration in the Claimant's mental health and physical wellbeing (section 1(3));
iv) the assessment failed properly to assess the Claimant's care needs against the eligibility outcomes as set out in regulations made under the Act; and
v) the Defendant failed to cooperate with NHS services, particularly with occupational therapy and physiotherapy, in assessing the Claimant's needs and the best way to prevent care needs arising in the future.
Permission was granted by Jonathan Swift QC, sitting as a Deputy High Court Judge, on 30 May 2018. The Claimant sought urgent consideration of an application for interim relief. Jonathan Swift QC refused that application on the papers, but directed that the substantive hearing be heard by 31 July.
The final relief sought by the Claimant includes (i) a declaration that the assessment was unlawful; (ii) an order quashing the assessment and requiring the Defendant to undertake a fresh assessment.
(B) FACTS
(1) Events from 2011 to 2017
The Claimant's muscular dystrophy is a degenerative and incurable condition. The Claimant is predominantly bed-bound, unable to weight bear and has restricted dexterity in her hands. She requires a wheelchair for mobility, and is reliant on carers for all personal care including toileting. The Claimant is continent, but requires carer assistance and a hoist to use the toilet; she has to wear incontinence pads for periods during the day and night when no carers are in attendance.
The Claimant has received services provided by the Defendant since May 2011. These were initially commissioned by the Defendant through a care agency. Since August 2013 the Claimant has received her care package via direct payments to meet her eligible care needs.
In 2011, the Claimant was accommodated by the Defendant in interim homeless accommodation. At that time, she was not receiving any night time care. An independent social work report by Mr Ian Gillman-Smith dated 11 August 2011 assessed the Claimant as requiring full assistance with going to the toilet, cleaning herself after using the toilet, bathing and personal hygiene, food preparation and domestic activities, assistance in transferring from bed to chair, commode or wheelchair, and adjusting her position when in bed or in a chair. Mr Gillman-Smith noted that the Claimant “does suffer from bed pressure sores as a result of sitting in a single place for long periods of time without moving, and this is exacerbated by sitting in her own urine and occasionally her own faeces”; that active input from both physiotherapy and occupational therapy professionals was required in order actively to promote the Claimant's physical well-being; and that she “should continue to be supported in accessing her church as well as possibly other activities that will engage her interest and own sense of purpose”.
On 1 September 2011, the Defendant carried out an assessment and care plan which concluded that the Claimant required support 24 hours a day with two carers in the morning and evening (a total of 185.5 hours a week). In particular, in relation to nighttime support the assessment included the following passages:
“Following discussion with [the Claimant] – the outcome is that
— [the Claimant] requires a carer to do sleep in (nights) – Monday to Sunday – 10pm – 6am (8 hours).”
“LIAISON WITH OTHER PROFESSIONALS:
Night care – 10pm–6am Monday to Sunday:
— To change her inco-pad about 3–4 times during the night – to reduce risk of infection, and re-occurrence of pressure sores
— Ensure safety at night, reduce anxiety, isolation and fear of male intruders
— As client is bed and house bound, having a night carer will ensure safety and evacuation at night should there be a fire or if the fire alarm goes off.”
“Requires a carer to do sleep in to change inco pads and reposition her – 3–4 times a night”
On 16 November 2014 the Defendant implemented a care package for 104 hours a week for the Claimant, provided by direct payments. At that time the Claimant's needs for care and attention were assessed as requiring: (i) “double-handed” care three times a day amounting to 48 hours (2 carers x 24 hours) per week; and (ii) 56 hours “single handed” night sitting (8 hours a night) “to support with turning in bed at night and change incopad”.
In December 2014 a hoist was installed at the Claimant's property to assist with lifting and handling and thereby eliminate the need for double-handed care. Despite the provision of a hoist, the Defendant failed to review the Claimant's care package until February 2016. The Defendant says the number of hours previously allocated ought to have been reduced much earlier but for a failure on its part to undertake a regular review (i.e. at least every 12 months) of the care package.
On 21 June 2016 the Defendant wrote to the Claimant informing her that her care package would be reduced, in particular that night time care (8 hours a night) would be removed as it was considered that this need could be managed through a pressure relieving mattress and incontinence pads, which by this point the Claimant was already using during the night and day. The letter itself is not in evidence, but a later document prepared by the Defendant quotes it as having said:
“Lewisham is unable to provide an overnight service to enable you to continue to be supported to the toilet during the night.
Lewisham has limited resources and that requires that we ensure we make the best use of the resources for all clients.
Lewisham social services believe that pads are the solution to managing incontinence over the night time period and that is an approach used for all clients with similar needs.
It has therefore been recommended that your night time need should be managed through the use of incontinence pads. The use of pads is considered a practical and appropriate solution to your night-time toileting needs.”
As counsel for the Claimant pointed out, a decision in the terms of that communication could not amount to an assessment complying with the Act, because it was a generic decision relating to the management of incontinence rather than one reflecting a consideration of the Claimant's individual needs and well-being.
On 12 July 2016 the Defendant completed a care and support plan that reduced the Claimant's hours to 52 hours a week. In practice, no reduction was implemented, apparently due to administrative oversight on the part of the Defendant, and the Claimant continued to receive direct payments at the rate of 104 care hours a week.
The Claimant contacted her local Citizens' Advice Bureau, who wrote to the Defendant on 27 July 2016 asking that the assessment be revised. The letter included the points that:
“[The Claimant] states that she has been told to drink more fluid, and this makes her pass urine more frequently – sometimes up to 4 times per night. I do not think lying overnight in a damp incontinence pad is consistent with personal dignity, nor with a private life.
[The Claimant] says the overnight service also:
— provided companionship; removing this adversely affects her well-being in terms of mental health;
— turn my client over when she is in bed, to alter her position; this is necessary as she cannot turn herself and states she is prone to bed sores; removing this adversely affects her well-being in terms of physical health;
— when...
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