The Queen (on the application of Luke Davey) v Oxfordshire County Council The Equality and Human Rights Commission (Intervener)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morris |
| Judgment Date | 27 February 2017 |
| Neutral Citation | [2017] EWHC 354 (Admin) |
| Docket Number | Case No: CO/2491/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 February 2017 |
[2017] EWHC 354 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Morris
Case No: CO/2491/2016
and
Jamie Burton (instructed by Irwin Mitchell LLP) for the Claimant
Jonathan Auburn and Zoe Gannon (instructed by Angela Mills, Principal Solicitor, Oxfordshire County Council) for the Defendant
Victoria Butler-Cole (instructed by The Equality and Human Rights Commission, Solicitor) for the Intervener
Hearing dates: 2 and 4 November 2016
Approved Judgment
(A) Introduction
By this action, Luke Davey ("the Claimant") seeks judicial review of the decision of Oxfordshire County Council ("the Defendant") made in or around October 2015 to reduce the Claimant's personal budget and/or to revise his care and support plan pursuant to the Care Act 2014 ("the Act"). The effect of these decisions is to set the personal budget for the Claimant's care at £950 per week with effect from 1 May 2016. This is a reduction from his pre-existing budget of £1651 per week. The relevant reduction arises because the proposed budget is based on, first, increased time spent alone by the Claimant himself without the assistance of his personal assistants ("PAs") and, secondly, reduced rates of pay paid, and terms and conditions offered, to the PAs.
The Claimant and his family
The Claimant, now aged 40, is, and has been since shortly after birth, a severely disabled adult with significant needs for care and support. He has quadriplegic cerebral palsy, contractures of hips and knees, hip dislocation, very little trunk control, stretched bowel and hypersensitivity to touch. He is not able to bear weight or mobilise and is therefore dependent on a wheelchair. He has severe visual impairment and is registered blind, although he has some, low vision, sight. He requires assistance with all of his intimate personal care needs (including personal hygiene and toileting, all domiciliary tasks and activities of daily living, including accessing the community). As regards his psychological health, he has in the past been recorded as having depression, persistent low mood and anxiety. There is some dispute as to the extent of the Claimant's disability, in particular in relation to mobility and the extent to which he has suffered or continues to suffer from symptoms of anxiety. Whilst fully recognising the Claimant's serious disability, the Defendant, from its own observations, assesses his needs as being "non-complex" and manageable.
The Claimant receives strong support from his family, led very much by his mother Jasmine Davey, who is now aged 75. She has recently received further treatment for skin cancer. His sister Rachel, his sister in law, Sue Davey and his father, Tony Davey are also active as carers. Despite these very substantial disadvantages, and undoubtedly due to the aid of his family and his team of carers, the Claimant leads an active and engaged life. This is very much to his credit. The Claimant and his mother were present during the course of the hearing. Both listened attentively and with considerable dignity.
The Defendant
The Defendant is the local authority with responsibility for the area where the Claimant resides. Key personnel in its Adult Social Care Team are Nicki Lovelock ("Ms Lovelock"), a social worker with 26 years' experience, with particular expertise in disability and adult mental health; Ms Julie Collins, an occupational therapist and Ms Jill Last the OT Practice Supervisor and Ms Collins' line manager.
Background to the claim
In 1999, at the age of 21, the Claimant moved out of his parents' house and into a purpose built two bedroom adapted bungalow in Burcot, Oxfordshire on a complex designed for disabled people. Ever since then, he has had largely the same team of seven carers: these include his two main carers — Sue Davey and Cheryl Hennessey, (who have been paid at a higher rate than others). Apart from his mother, the family carers are all paid.
Care and funding arrangements in the past
For many years, the Claimant has received adult social care support under relevant legislation. Until June 2015, based on a needs assessment and a care plan, this care was funded to the tune of £1651 per week, provided in part by the Defendant, in part by the Independent Living Fund ("ILF") in an amount of about £730, in part by the Health Service/NHS and by a small means tested contribution from the Claimant.
Change in funding
By January 2015 it was public knowledge that the ILF was to close down. The ILF closed with effect from June 2015. Thereafter the funding of the Claimant's care and support has been provided by the Defendant alone, and the Defendant has decided to reduce the sum paid to £950 per week with effect from 1 May 2016.
The Claimant contends that, following the closure of the ILF, the Defendant agreed to fund the same care arrangements, namely through a team of visiting PAs. The Defendant contends that in order to meet his needs, it is required to do so to the amount of £950 per week. The Claimant's position is that those needs cannot be met by such a reduced amount.
By July 2015 the Claimant was aware of the Defendant's proposed revised personal budget. Following objections from the Claimant, in September and October 2015 the Defendant carried out further updated assessments of needs and produced a revised care plan and personal budget, essentially confirming the position at a weekly sum of £950. Following further pre-action correspondence, proceedings were issued in May 2016.
The Claimant's case in outline
The Claimant contends that the reduction to £950 per week is in breach of the Defendant's obligations under the Act and/or is Wednesbury unreasonable. The Claimant's grounds of challenge are set out in detail at paragraph 109 below. He asserts that there were two underlying reasons given for the Defendant's decision to reduce the personal budget. First, the Claimant could spend more time alone without the benefit of a PA being present. Secondly, the Claimant could and should reduce the amount which he pays to his PAs. This, the Claimant says, poses two risks to his wellbeing. First, anxiety arising from having to spend unwanted time alone and, secondly, the risk of losing his established care team of 18 years. These concerns are present throughout the history of assessments right up to assessments in September 2015. The Claimant and his family believe that the Defendant set a budget and then assessed the Claimant's needs so as to fit that budget. The Defendant denies this.
The Claimant in turn has sought to modify his position. He has agreed to being exposed, each day, to two additional hours of time alone (rather than four) so that he is alone for four hours a day, rather than 6 1/2 hours and has accepted certain reductions in the terms and conditions of the PAs. On this basis, the Claimant has been prepared to accept a reduction to £1224 per week. The dispute is thus between £950 and £1224.
(B) The Legal Background
The Legislative Framework
The legislative framework for adult social care, previously to be found in a complicated array of statutes, subordinate legislation, guidance and directions, was modernised and brought together by the introduction of the Care Act 2014. I am grateful to Mr Burton, counsel for the Claimant, who set out the legislative framework under the Act in a detailed note.
The new legal framework comprises the Act, regulations and a single statutory guidance document "Care and Support Statutory Guidance" ("the Guidance"). Section 78 of the Act imposes a duty upon a local authority to "act under" the Guidance in the exercise of functions under Part I of the Act.
Key elements of the legislative framework are, first, the "well-being" principle and secondly the three (or four) stage structure for the provision of adult social care. That structure, reflected in the provisions of the Act, can be summarised as follows: (1) assessment of needs; (2) eligibility of the assessed needs (i.e. whether it is necessary for the local authority to make arrangements to provide services in order to meet those needs); (3) the making of the necessary arrangements by the local authority and (4) what is the reasonable cost of securing provision of those services, if the person qualifies for direct payments (see R(KM) v Cambridgeshire CC [2012] UKSC 23 per Lord Wilson at §§15 and 23 and per Lady Hale at §45).
Independent Living Fund
The ILF was a body which operated in partnership with local authorities to devise and provide joint care packages and direct payments to assist disabled persons to lead independent lives, as fully as possible in the community: see Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 at §5. When the ILF closed in 2015, its funds went to local authorities, including the Defendant. According to the Defendant's evidence, the ILF served as a "top up fund" to enable disabled people to have more choice. Its funds were not provided in order to meet eligible assessed care needs (as defined below in s.13 of the Act). That this was the case is implicit in the Defendant's letter to service users on 14 December 2014, pointing out that some users might experience a reduction in their total funding, because their ILF funding had been made to pay for "additional funding". See also Bracking, supra, §7.
The Well-being principle
At the heart of the new legislation is the "well-being principle". Section 1 of the Act provides as follows:
"1. Promoting individual well-being
(1) The general...
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