The Queen (on the application of JF acting through his mother and litigation friend KF) v Merton LBC

Well, what do you know? It seems as if community care law is still in existence, and needed, even – as a measure of accountability, in very difficult times! Councils have a legal obligation to keep up staff’s competence, and will thus have to ensure that the message is properly conveyed, to both senior and front line staff. Does anyone want a webinar? 🙂

Merton – in a decision of Anne Whyte QC, sitting as a Deputy High Court Judge – has apparently ignored many long-established pre Care Act principles and has consequently lost a case about assessment under the Care Act, setting a precedent about what makes for a lawful assessment. Here is the link to the judgment, and analysis follows below: Merton judgment about Well-Being and Assessment

The case holds no real surprises but is a useful precedent for anyone looking to write to a council’s Monitoring Officer about poor practice regarding assessment duties. The old cases of Killigrew, against Birmingham, and Savva, against Kensington & Chelsea, could have been relied upon without going to Court, perhaps.

Lessons for funding panels, and review team assessors

The case also underlines the ‘building block’ approach to a lawful assessment, with recording of views about x, y and z, under the Care Act, all being a necessary part of delivering a proper assessment to care planners, and proving that one has had regard to and taken account of all the necessary features of a person-centred assessment.

So a decision to terminate a placement and move a man from his current placement to a setting where there was no specialist multi-disciplinary team, after years of his being able to access such a service, without any evidence basis identified for a decision that one was no longer needed, was clearly unreasonable. The Killigrew case had settled that as a principle, before the end of the last century!

I think that the most important lesson emerging is for Funding Panels, harking back to the Savva decision, pre-Act.

That case established that the Panel’s written reasons for regarding its job as done, when it signs off a disputed budget and plan, are necessary as an aspect of procedural fairness. Neither the Care Act, regulations, guidance nor even this case goes quite so far. However, the judge used the absence of any clarity about the Funding Panel’s personnel, scope of delegated authority, policy or processes, as going directly to the unlawfulness and unreasonableness of the decision.

The facts

The man in this case, JF, is in his early twenties, and has Autism Spectrum Disorder and severe learning difficulties. He is non-verbal and requires alternative communication techniques to assist with his basic communication. He is highly anxious and this is exacerbated by any change to his routine or environment, however minor. His emotions and behaviour can be disinhibited and he regularly tries to abscond. He is at risk of self-harm. As a result, he requires adult residential care with specialist support.

A specialist college had appropriately met his needs to date, and the council had funded his access to an on-site multi-disciplinary team for some 15 years, including occupational therapists, SALT therapists etc.

This was what the council decided would not be needed, and thus why it was necessary to move the young man, as the cost of maintaining that team was no doubt part and parcel of the provider’s costing model.

Merton prevailed upon a care home provider candidate which it had somehow identified BEFORE any Care Act process, to do a Pre-Admission Assessment. The provider’s document was supposedly designed to identify the needs of each service user at the pre-admission stage. The provider had concluded that it was suitable and could adequately meet the man’s needs.

This was of course a decision that any provider has to make in some shape or form, to meet CQC expectations that providers don’t take on people they are not competent or sufficiently staffed to manage; it may also be useful as part of the first stage of a tendering process, to ascertain capability, but it is not a Care Act assessment.

His parents were concerned that any transition to another accommodation and in particular to the provider favoured by the council would not only risk a serious reversal of the slow progress that their son had made at the College but that it would also harm his emotional, physical and psychological well-being and place him at a higher risk of being made subject to a MHA detention order. The family visited the proposed placement and came to the conclusion that it could not meet their son’s needs. From their perspective (and the College’s), their son was doing fine and should have been able to stay at the College because it also had adult provision to offer.

By June 2016 the situation appears to have been that
i) LBM had said that JF’s placement would terminate;
ii) LBM planned to move JF;
iii) an alternative service provider had deemed itself by 26 February 2016 a suitable provider to meet JF’s needs;
iv) LBM agreed that that provider could meet those needs; but
v) LBM had not yet authorised funding for the new placement.

Matters (i) to (iv) all occurred before the completion of any Care Act Needs Assessment.

Some thought was given to a short residential assessment – ie moving him to the potential placement for a trial. The parents considered that it would not be in his best interests to have his routine dramatically disrupted for the sake of such a short-term transition and in circumstances where his likely disturbance would affect the quality of the assessment. They therefore declined this offer. It is not submitted that this was unreasonable.

The parents suggested that the provider’s staff re-visit their son at the College and conduct a fuller assessment in order to establish whether or not they rally could meet his needs; Merton refused, because it was considered that an adequate assessment on site had already taken place as reflected by the provider’s pre-admission report.

The arguments

The man’s lawyer asserted that the process followed was a wholly inadequate basis for moving someone from their current accommodation.

The council predictably contended that no final decision had yet been taken about the man’s future placement, because such decisions were made at a funding panel level.

They also tried to argue that an assessment was not even a judicially reviewable decision!

The barrister for the council suggested that ‘it had been assessed that he did not need on-site multidisciplinary access’ but there was no evidence of an assessment of that question ever having taken place; nor was the judge told when or who had decided that.

In my view that starting point for re-commissioning is bound to have been a budget-led edict, when management last looked at the state of its departmental budget. It is commonplace for review teams to be given ceilings or targets in advance of care planning, but that trend cannot translate into a wiping out of previously assessed needs without a new evidence basis. This judgment says that that sort of question can’t be concluded, formally, without a lawful Care Act assessment.

The findings of the judge:

The judge referred to the findings in the Davey case earlier this year:
Section 1(1) and (2) impose a distinct duty upon a local authority, in each individual case, to promote the individual’s well-being, including for example physical and mental and emotional well-being (or, as here, access to suitable accommodation).

Section 1(3) contains a separate “have regard to” duty to a further set of matters listed therein.

If the relevant local authority does not assess the matters specified in section 9(4), including the impact on “well-being” (as defined), then there is a breach of the statutory duty.
This means that the assessment must determine how those assessed needs impact upon one’s mental and physical and emotional wellbeing and the implications of that impact on the suitability of accommodation that may be required. (See section 13, too, for a duty to consider what COULD be done to meet needs, before care planning commences).

Councils have a mandatory duty to identify and record a person’s desired outcomes in the context of the section 1(1) duty to promote “well-being”. 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.

This judge, here, also adopted and summarised the Davey Court’s conclusions as follows:-

First, where there are specifically factors required by law to be taken into account, a failure to take account of such obligatory factors will necessarily invalidate the decision.

Secondly, where there are other factors which may be taken into account (or indeed which others or the court itself would have taken into account) a failure to take such factors into account will not vitiate the decision.

Thirdly, there is a class of factors which ought to be taken into account. Here a failure to take account will vitiate. Such factors have variously been described as “relevant” or “clearly relevant” or “so obviously material” to the exercise of the particular discretion such that they ought to be taken into account.

She reiterated (as is already well established) that the proof required to show unreasonableness must be convincing. The claimant must demonstrate an error, or errors, of reasoning which rob the decision of its logic. Given this man’s permanent vulnerability and dependency upon care and support workers, however, the intensity of review required in this case is high level review, not arm’s length.

The judge regarded it as clear legal principle that:
• If the Assessment failed to assess the impact of the client’s needs for care and support upon the factors of wellbeing listed in section 1(2) of the Act, then it is an unlawful assessment.
• Likewise, if it failed to assess the outcomes that the man wishes to achieve in day-to-day life, and whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes, it is unlawful.
• If it fails to have regard to the matters specified in Regulation 3(2) of the assessment regulations, it is unlawful.
• If the assessor fails to have regard to the wishes and preferences of the individual (expressed here to a degree by his parents), then it is unlawful.
• And if the Assessment is neither appropriate nor proportionate then it is unlawful.

The judge did allow the submission that an Assessor is not under any explicit duty to explain in a Care Act Assessment document, why he or she disagrees with anything contained in such reports or with the views of parents etc. The conclusions reached were set out, and the material on which they are based was identified, and that is a legally sufficient approach to an assessment, but, the judge said, always subject to the conclusions being rationally based on the material.

The decision to terminate

The judge concluded that despite the fact that the Funding Panel had not met, the council had formally decided to terminate the man’s current placement at the College.

The combined effect of the language used in the statements for court, and the late care plan, and the steps taken was one of decision rather than undecided planning, implementation of which had merely been deferred.

As to that decision, the judge said that the decision to terminate the placement could not be said to be rational. It had been made before his needs had been conclusively assessed under the Act and on any view, before the preparation of the Care and Support Plan. In those circumstances, it was difficult to see how the decision could have been made in compliance with any of the statutory duties contained in section 1 and 9(4) of the Act and in Regulation 3 of the Assessment Regulations.

There was no evidence before the Court justifying the decision to terminate. No reasonable local authority would terminate the placement of someone with such complex needs without having conducted a lawful assessment of those needs and without having lawfully decided that suitable alternative accommodation was available that would enable them to meet his needs.

Looking forward from the identification of needs, to actual care planning:

In relation to the arrangements for any future move, the judge found that an Assessment under section 9 is not required to deal with the detail: the Care Act Assessment is designed to be a statement of static current needs, not how such needs should be met or changes in the response. It must consider the effect of his care and support needs on the suitability of his accommodation, not how he might move to and from any such accommodation.

But the judge confirmed that that would be part of care planning: because then, the council would need to promote his well-being under section 1 and would have to manage any transition in a way which complies with section 1.

Where a duty to meet needs arises, councils must, under s24 (1)(a) of the Act, actually prepare a care and support plan – here the plan was not prepared until well after the proceedings were commenced. The plan was not actually the focus of the case, but the detail was relevant to the adequacy of the prior assessment and the rationality of the assessment conclusions – pre-cursors to care planning, many would say.

When Merton’s barrister was asked if Merton had already decided that its preferred provider could suitably meet the man’s assessed needs, he acknowledged the ‘impression’ that such a decision had been taken (in particular by the social worker/s responsible for the Assessment), but said that no decision about the provider’s suitability had been taken at “corporate” level because no decision had yet been made about funding the placement. This meant, he contended, that the provider placement was merely “on the table”.

The judge at trial had been shown various independent reports which she thought supported the contention that this man NEEDS an on-site MDT, total communication environment and detailed and long term planning for any change in placement.

The care plan may well not have been signed off, but the work of care planning had certainly been done by the social worker: her statement, however, just stated that the local authority had decided that its client did not need an on-site MDT or a TCE. The only evidence about the decision concerning these potential needs came from Ms Singer; she stated that there was consultation and advice about this and the outcome was that the “local authority” decided that he did not require an on-site MDT and a TCE. It was therefore not stated that it was HER professional view.

The judge was not provided with any evidence about how the funding panel operated or any written policy and procedure distinguishing between the significance of decisions by social workers and decisions at a corporate level about placements of this nature. The decision-making process behind the conclusion no MDT/TCE was needed, was not particularised and the decision maker/s not identified.

The judge said that the council might well be entitled to conclude that he did not need MDT or TCE, but only on a lawful and rational basis. As it is not possible to tell when the decision was made that he did not have these particular needs nor by whom, it was not possible for the Court to be satisfied that the parents’ views (and the client’s wishes) were taken into account. In this assessment, omission to deal with the subject prevented any reader from understanding whether need for an on-site MDT/TCE was actually considered and rejected, or simply not considered at all.

It was also impossible to know whether in this respect, the defendant had regard as required to the desired outcomes for the man, or whether it assessed the impact of his MDT needs in the context of his well-being and suitable accommodation. But if he didn’t have those needs, it would be a departure in the type of service provided to the man for the last 15 years….

In legal terms, care managers either make recommendations to panel, who are the decision-makers, or they make decisions which a panel might audit but not overturn, perhaps thinking it better to save the panel process for dispute resolution if someone challenges the adequacy or legality of the package. My long-held view that Panels should be asking staff to come to panel with TWO recommendations, and not merely one, so that Panels can do what they were born to do, which is exercise discretion, in their own senior professional names, for rational reasons, chimes nicely with this case, I feel.

The wondrous conclusions of the court for this client, on these facts – even though a council COULD make the same decision, second time around, please note:

“I am satisfied that the defendant failed to comply with its duties under sections 1(1) and (3) and section 9(4) of the Act. The decision was not reasonable in the Wednesbury sense. Accordingly the Assessment was not lawful. Any re-assessment of JF’s needs must be based on his current situation and not conducted from the position that his placement is no longer available to him.”

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!

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