Analysis of the Court of Appeal’s judgment in Luke Davey’s unsuccessful Care Act case

Court of Appeal – Davey judgment is the link to the judgment of the Court of Appeal – in the first case to reach this level, so far, under the Care Act.

Mr Davey has (not surprisingly, it has to be said, with all due respect to his legal team) lost his case. It is important that service users and social workers and advocates should understand why, I would suggest.

The facts of this man’s case are set out in an earlier blog post on this site (Search Luke Davey in the search box) so I won’t go over them again.

Suffice to say that Mr Davey was assessed and planned for (after the ILF element of his package was terminated) on the footing that he could, in the Council’s view, safely spend more time alone without the benefit of a personal assistant (PA) being present. Secondly, it was determined that he both could and should reduce the amount which he chooses to pay to his PAs, who were largely members of his own family.

Mr Davey had indicated through lawyers that he was not willing to accept the reduced weekend rate, the reduction in the day rate for the two main carers, nor the payment at standard rate on bank holidays. The council’s position was that as regards carers’ terms and conditions, there was no evidence that carers would leave – as the two main carers had withdrawn their resignations, and the minimum wage of £7.20 and the £40 night shift rate were compatible with rates many other service users were paying.

It is important to note that the care planning for time alone for Mr Davey before the case was started had been suggested to be phased in and to increase gradually.

The plan had extended the duration of such periods from 2 hours, once a week, to 5 hours on 4 days a week, and 5.5 hours alone on 3 days of the week, costed out on the rates for PA attendance, from time to time, not live-in care. This time alone would go up, eventually, to 6.5 hours a day. At the outset of the phasing / tapering period there was to be care for 19 hours per day, reducing to 17.5 hours from January 2016 onwards.

From May 2016, the hours of care per day were increased slightly to 18 hours and the weekday rate was increased to £7.20 due to the increase in the minimum wage from April 2016, but the weekend rate was further reduced to £9 per hour.

There was thus no increase in the personal budget.

These suggested timings as part of his revised care plan and budget were because the assessor and planner thought that Luke “risks loss of independence and autonomy as although he lives in his own home, he has become dependent on carers and family to meet his needs”.

In the next column of the documentation for care planning it was said that this risk could be: “Managed by carers encouraging Luke to do as much as possible for himself, within safe limits. …”.

The council specifically denied that its view of the right time for him to be left alone, had been driven or constricted by funding (which is perhaps hard to believe when the hours went up but the rates went down and kept the budget within the initial planned limits!).

The grounds for appeal, and the Court’s approach:

– The council had failed to consider the effect of the Claimant being expected to spend three periods of two hours per day alone upon his ability to engage in social activities; that constituting a breach of Section 1 of the Care Act 2014 or another unlawful act of some sort;

– Mr Davey contended that anxiety from being alone was not identified as a risk arising from any reduction in carers’ time. So it was alleged that the council did not have regard to the need to ensure that decisions about the Claimant were made having regard to all the Claimant’s individual circumstances and thus did not act in compliance with its duty under Section 1(3)(d) of the 2014 Act;

– The Defendant failed to evidence its contention that the proposed rates for personal assistants providing care to the Claimant were reasonable or compatible with its obligations under the 2014 Act.

Since then it was reported that Mr Davey does now successfully spend three periods of two hours each day alone; and also that two new carers have joined the Claimant’s team, each paid at the (current) minimum wage of £7.50 per hour.

The Court was clearly impressed by the first instance judgment, as appears here, in a passage where the Court confirms that the legal framework in the Care Act does indeed have implications for the lawful practice of adults’ social work teams and care management staff:

52. The judge (Morris J) made the following observations on this sub-section with which I would agree. First, the assessment duty is a duty upon the local authority and the assessment under s 9(1)(a) and (b) is an objective assessment made by the local authority (usually acting through its social workers or occupational therapist). Secondly, under s 9(4), there is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes. On the other hand if, in the course of a needs assessment, the local authority does not assess the matters specified in s.9(4) (including the impact on well-being matters set out in s.1(2)), then there is a breach of the statutory duty.

That confirmation is GOOD for anyone interested in the rule of law in adult social care, it is suggested, and together with the Merton judgment, covered in another post on this site (search Merton in the search box) makes it easy to challenge an indefensible assessment, at least by those who take the time and trouble to use the legal framework.

The UN Convention point – on independent living rights in article 19

Mr Davey’s lawyer got nowhere on this point either, and neither did the third party interventions by way of written submissions from the EHRC and the charity, Inclusion.

The judge had found that it was irrelevant because there was no ambiguity in the Care Act which admitted of even interpretative assistance by reference to article 19, the UN Convention being merely an unincorporated international treaty which, absent incorporation, creates no direct obligations in UK domestic law and setting out aspirational provisions which cannot qualify the clear language of primary legislation.

“Mr Burton did not argue that there was any error in the judge’s conclusion that Article 19 of the UNCRPD did not assist the Claimant’s case.

I have set out the judge’s conclusions on this topic only because the EHRC, in their written submissions lodged as interveners in this court, argued that “the decision of the Respondent in this case, and the judgment of Mr Justice Morris upholding that decision, goes against the principles of Article 19 of the UNCRPD”. I need say no more in the present case than that, with respect to the EHRC, the judge’s analysis seems to me entirely correct.

But this should not prevent the argument being advanced in a future case where it is the subject of adversarial argument by the parties.”

The issue about the consideration of the impact of a change in care regime

The judge had agreed that the assessment finding that a major change would carry significant risks in fact represented Ms Lovelock the social worker’s view and not only the Claimant’s own assertion.

This Court agreed that the reference to a “major change” which in her view would carry “significant risks” was a change to a live-in carer rather than a change in the team of PAs, which was not a change in regime to which the council had actively tried to budget down.

Like the judge at first instance, this Court was of the view that the budget was based on a team of PAs, not necessarily the current ones preferred by Mr Davey.

The social worker had explained that she thought that changes in the Claimant’s current care team would be positive for the Claimant and his emotional wellbeing, enabling him to reduce dependence upon specific carers. This would be unsettling in the short term, but bring important benefits in the longer term.

This Court agreed that this would have been inconsistent with a concern about significant risk, but that was explained away as having been about a potential change to a live in regime. This Court was quite satisfied, as had been the first instance judge, that the view about the positive implications was a genuinely held view. The lead judge (Bean L.J.) said this:

“It does seem counter-intuitive to me, at least if one is referring to a complete or substantial break-up of the team who have looked after the Claimant for so long; but I am not an expert in the field, and I cannot possibly say that the view expressed by Ms Lovelock is irrational. In any event, if the judge was entitled, as I have held that he was, to find that there was no sufficient evidence that the existing team of PAs would break up, the issue of whether or not that would be a positive move in reducing the Claimant’s dependence on them, simply does not arise.

Lady Justice Thirlwall added this:

“Like Bean LJ, I find it difficult to see how a change in the team could be thought to be beneficial but in the light of the judge’s findings about the likelihood of this I say no more about it. The very significant reduction in the Claimant’s personal budget was reached at the end of a lawful process, as the judge found.”

The day trips point

The Court said this:

“83. In an early witness statement Ms Lovelock stated that “it is only during the proceedings that the issue of Mr Davey going on day trips has been raised”. There is a degree of ambiguity in the phrase “day trips”, but if it means trips lasting all day, it is right to say that such trips, other than to the Claimant’s parents, hardly feature at all in the contemporaneous evidence. The judge was entitled to make the findings of fact which he did in the paragraphs just cited, and on that basis to reject the claim under Ground 2c.

The minimum wage point

As regards how much to pay PAs, the Oxfordshire guidance for Direct Payments had stated thus:

“You must pay them at least the national minimum wage. On average, the typical hourly rate for a Personal Assistant is around £8.50 during the week and £11.05 at the weekend. …”

The national Care Act guidance says this:

“11.25 The Act states that the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs.
In establishing the ‘cost to the local authority’, consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget.
To further aid the transparency principle, these cost assumptions should be shared with the person so they are aware of how their personal budget was established.”

It may be that Oxfordshire would have liked to pay more than the minimum wage, and the judge had noted its own guidance found that a typical rate was in fact higher. But the judge said this, after the cuts had bitten on the council’s own ability to do what it would have liked.

“81. No one could criticise Sue Davey’s opinion that payment at minimum wage rates is a poor reward for a carer of her quality and experience. But as the statutory Guidance makes clear in paragraph 11.25 cited above, a personal budget should reflect local market conditions. The judge was plainly entitled to accept Ms Lovelock’s evidence about local market conditions in the area of the Claimant’s home, together with the indication that if those conditions change the Council would be bound to revisit the issue. The Claimant is in effect saying to the Council “(a) some of my carers are not prepared to work for the local going rate; (b) therefore, in order to maintain the continuity which I value, you must set my personal budget at a level which enables me to pay them more than that rate”.

I do not consider that it is unlawful for the Council to decline to do so. Ground 4 therefore fails.”

Commentary regarding the rates being paid for direct payment users

Readers should take special note of the emphasis in bold and italics before despairing about the rates being offered locally, by other councils in direct payment discussions.

This doesn’t mean that the council can ignore law or the evidence about the going rate, if it is higher than the national minimum, by dint of local determination on the part of providers; and nor if the specialist needs of the client are such that the minimum wage sort of employee isn’t going to be able to be seen to be competent in providing appropriate care to meet the actual needs of the individual in question.

The best way to draw this out is to demand a care plan should be produced, as per s25 of the Care Act, showing how the council would itself manage to commission appropriate care for the cost being offered, after allowing for the effect of direct employment savings, if the potential Direct Payment purchaser is going to become a direct employer and not use a DP to pay an agency, it is suggested.

Neither does it mean that the council can set a budget at a rate which disincentivises people from ever taking a direct payment, ie, paying less than the market would charge an individual purchaser, and only offering to pay that which a council would pay for a bulk/volume service from an agency trying to stay in business – because in taking such an attitude, the council would be wanting the benefits of getting people off of its books, whilst not taking into account the obvious and rational reasons why the rate to a person buying on their own might well be more than it would be, to a council buying in bulk.

And finally, this case cannot make it legal to deter a person from remaining on a direct payment by an offer ONLY to pay for the new interpretation of the minimum wage counting rules about night time work, ONLY if the client uses an approved provider of the council. The conditions that councils can lawfully attach to direct payments do not go that far, in the context of a direct payment being intended to maximise choice and flexibility, it is suggested.

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

4 thoughts on “

Analysis of the Court of Appeal’s judgment in Luke Davey’s unsuccessful Care Act case

  1. Marie Harvey

    Hi Belinda
    I am assisting a friend whose mother has been receiving commissioned care (via an agency) for a while, and as it is not working they have been offered a Direct Payment – they have a carer lined up and two others who could cover days off, holidays etc.
    The budget is decided, and the social worker has said they just want to mimic the calls the agency has been doing. Costing has been done by the support service for the carer to be paid £9 per hour during the week and £10 per hour at the weekend – this does not use all of the budget, it leaves a surplus which could be used in an emergency.
    The local authority have told the lady that they “do not pay more than £8 per hour for a Direct Payment worker unless it is specialised care” I am absolutely sure they cannot dictate the rate of pay and absolutely know that other Direct Payment users in the same area are paying £9 and £10 in some cases.
    Where In the Care Act is this covered please? I have tried to contact the Advocacy Service, and they have not even called me back! The lady is still suffering with the agency – and has been diagnosed as needed pallative care now so time is of the essence! She will be much much happier and the daughter much happier (she lives a considerable distance away and so worries but would feel much happier with their chosen carer who has been known to the service user since she was little).
    Thanking you in anticipation!
    Marie Harvey

    1. Belinda SchwehrBelinda Schwehr Post Author

      Marie hi
      The short answer is that it isn’t covered in the Care Act. And that’s not an accident!
      The law is this: the budget must be set rationally, and sufficiently, based on the assessed eligible needs and the person’s priorities where they at least overlap the statutory purpose which is meeting the needs so that the impact is reduced to something less than whatever counts as ‘signficant’. Sufficient is not defined. The budget needs to take in the market rate for the hours that have been regarded as needed, including a consideration of the skill level, as care costs differ according to input required. The budget might have to take account of the willingness of the person to be a direct employer, in which case the rate being paid to PAs is what has to be paid; in this current market, more than minimum wage plus oncosts is required to attract a carer, in most places. Some councils assert that an average will be a wage that pays more at the weekend; others don’t. Some pay more for bank holidays; others don’t. The offer/indicative budget is not lawful if there’s no rational justification (an evidence basis) for thinking it will be enough. BUT ANYONE CHALLENGING THE COUNCIL’S ASSERTED RATE ALSO needs an evidence basis: a decision is defensible unless challenged competently. Those whom you believe to be paying higher salaries would be said to be paying for wants and not needs, no doubt. So someone seeking to say that it is not enough to GET a carer (not the carer that they want but a carer who would do) needs to look in the small ads for what others are paying, or put an advert in to show that the money on offer is not enough. So, the way forwards is to ask the council for their evidence basis, whilst marshalling one’s own, and insisting that you have a management review as the budget is disputed (the Guidance says that this is what should occur) and that you are not to be taken to be complaining, but requiring more transparency in the budget, as emphasised to be necessary in the NE Lincs v CP case (recent, and binding).

      NB I am not sure whether the rate being mentioned is exclusive of the oncosts, or the gross amount to be paid. I am finding that where support services are being paid to manage, councils are quoting the net salary and leaving the oncosts unstated in the budget, which is absolutely not correct. It may be that depending on the chosen carer, they don’t need a pension to be contributed to, or they don’t need training, etc; so it should all be more personally worked out.

      regards
      Belinda

      1. Marie Harvey

        Hi,

        Ok thank you. The rates of £9 and £10 are exclusive of on-costs, the PA does not want to opt in to a pension, and the budget covers all other on-costs easily, with the £40 odd left each week as a surplus.

        So, my understanding of what you are saying is that even though the budget covers this hourly rate the council can indeed legally say “No, we only want to pay £8 for that sort of care” and the onus is then on the client to prove that this is not a feasible rate to attract and keep a good carer?

        I have emailed you also, you can ignore, sorry I had not seen reply. I also forgot to say that you were referred to me – emails explains by whom.

        Thank you

        1. Belinda SchwehrBelinda Schwehr Post Author

          I have replied by email but going further than the first response on this site. A situation where the budget you are given to work with will cover oncosts because of special features of the chosen PA is indeed one where real savings can be secured and a much better outcome attained, but the council’s obligations do not extend to funding what a person would LIKE to pay a PA. They are based on allocating a gross DP budget for what the market compels a person to pay a PA, which has to be minimum wage plus oncosts, but which may well be more, in this particularly difficult market. The fundamental problem in your scenario is the budget you were working with and the absence of any detail as to where it came from – because if a person wants a direct payment, for exactly the same profile of service, they can fully expect to be asked what their intention for use of it is: employing a person will lead to a cut in the existing budget, perfectly lawfully, because it will generally meet the needs rationally and sufficiently. If agency use is contemplated, however, the existing budget might even have to be enlarged, as a provider might well charge an individual client more than a bulk purchaser for the same inputs.
          A council cannot legally say we only want to pay £8 for that sort of care, and that is not what I have said, with all due respect. That would be a fetter of discretion, and one which would potentially ignore the real cost of care. In the Luke Davey case, there was no actual challenge the evidence that the rate finally offered by Oxfordshire would not meet the need by way of attracting or retaining staff, remember. In your case there is no detail as to what the preferred carer would like to be paid. That must be the starting point, for a support service. The onus is not on the client, but what a legally worded challenge to the budget would do would be to say what is the evidence basis for saying that £8 is enough to meet the needs? If a person is going to challenge the budget then it is only prudent for them to have marshalled their own evidence basis which will then have to be addressed by the client. Ultimately, the onus to challenge IS on the client, because the law in this country is that a public body’s decision is deemed to be lawful, unless and until challenged. a conscientious management review is all that the legal framework entitles the client to, outside of the complaint system, and that is why a proper advocate would have been able to get a response out of this particular council, I feel. Please see the email I’ve sent as to my guess as to why there is none appointed.

          best regards

          Belinda

You can make a comment below. The name you put here will show. So make one up if you want anonymity. Your e-mail address will not be public.

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>