Lessons for social workers from the Care Act test case on wellbeing

Pete Feldon explores what social workers can learn from the recent judgment in the case of Luke Davey v Oxfordshire County Council

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Photo: Gary Brigden

By Pete Feldon, a member of BASW’s Adults Policy, Practice and Education Group

The first legal challenge dealing with the Care Act 2014’s wellbeing principle was the case of Luke Davey, a 40-year-old man who has cerebral palsy and uses a wheelchair.

Davey brought a judicial review against Oxfordshire council after it proposed a significant reduction to his personal budget, which was part-funded at the time by the Independent Living Fund. The council reduced Davey’s personal budget from £1,651 per week to £950 per week after the ILF closed in June 2015. Davey unsuccessfully argued that this proposed reduction posed risks to his wellbeing and the council had made unlawful decisions.

There is much for social workers to learn from this case.  It tested some of the core principles of the act and some of the arguments were useful in defining the relationship between needs and what the personal budget allocation should be.

It is to the credit of the social worker involved in Mr Davey’s case that she was mostly able to demonstrate to the judge that her professional judgment was sound and the decisions taken by the council were legally defensible.

‘Tortuous route’

It is important for social workers to appreciate the scrutiny applied by the judge to assessment and support planning, and the implications this has for case records.

In some circumstances, the judge relied considerably on the witness statements made by the social worker; for example, where the case records did not provide the clarity needed to explain the relationship between Mr Davey’s needs and how they would best be met. But in other circumstances, the judge saw no reason to depart from what was set out in the support plan, and did not accept the council’s attempts to reframe it.

The judge’s reasoning sometimes had to follow a tortuous route to resolve the contradictions between the case records and the professional judgments set out in the witness statements. This was principally because what was recorded in the case records in the period after April 2015, when the Care Act was implemented, was not expressed in a needs-led way.

For example, in the September 2015 assessment, one of his needs is stated as: “to provide the option for Luke to spend more time alone, safely, in his home, to develop his independence, and reduce anxiety”. The judge interpreted ‘developing independence and reducing anxiety’ as the need and ‘spending more time alone’ as the means of meeting that need.

Arguably, the judge would not have needed to have provided this interpretation if the statements made in the needs assessments were more in accordance with the Care Act, ie setting out the activities and tasks that Mr Davey has difficulty with as a result of his physical impairment, and then determining the extent to which this has a significant impact on wellbeing.

The judge confirmed that the final determination of an individual’s needs was a matter for professional judgment. He ruled the principle established by the Care Act that the “wishes of the disabled person may be a primary influence, but they do not amount to an overriding consideration”, is in line with the UN Convention on the Rights of Persons with Disabilities.

‘Overriding social work judgments’

The judge’s remarks about how the personal budget was construed by the council provides some clarity for social workers. There are two key factors in the determination of any personal budget. The sum must be sufficient to meet the adult’s needs and it must also reflect the cost to the council of providing services to meet those needs.

On the matter of sufficiency, the judge was satisfied with how the council had formulated the cost of employing personal assistants, even though it meant less favourable terms for Mr Davey’s existing staff. It is noteworthy that he stated that the adequacy of rates of pay must continue to be taken into account and doing so is “an important safeguard”. He remarks that it is significant that the social worker gave an assurance in their evidence that “if it was in fact proving difficult to find sufficient carers, the defendant would consider increasing the personal budget when the care plan is reviewed”.

However, the judge did not accept the way the council sought to use the notional alternative of live-in care as a benchmark for the total cost of Davey’s care package. His judgment was that “the care plan and personal budget were predicated on the provision of care through a team of PAs and that live-in care was not an option open on the facts and was not the option chosen”.

It is disappointing that this judicial review did not test the initial assertion made by Mr Davey that Oxfordshire County Council had set a budget and then assessed his needs to fit that budget. This might have cast some light on a general concern; sometimes the determination of what is a reasonable cost to the local authority is overriding social work judgments about what is sufficient to meet needs.

A full analysis of the case is available at https://www.basw.co.uk/resource/?id=6314

Pete Feldon is also the author of The Social Worker’s Guide to the Care Act 2014, to be published by Critical Publishing in June 2017.

 

9 Responses to Lessons for social workers from the Care Act test case on wellbeing

  1. Andrew Reece April 19, 2017 at 12:26 pm #

    ‘Arguably, the judge would not have needed to have provided this interpretation if the statements made in the needs assessments were more in accordance with the Care Act, ie setting out the activities and tasks that Mr Davey has difficulty with as a result of his physical impairment, and then determining the extent to which this has a significant impact on wellbeing’
    To my mind the author has misunderstood both the wellbeing principle and the requirements​ in the Care Act to both focus on outcomes and assess a persons strengths and assets, not their deficits: the author seems to be suggesting a return to NHS and Community Care Act ‘needs led’ as though the Care Act had not changed this. I note that the Judge did not criticise this aspect of the assessment.
    I don’t think i will be buying this guy’s book.

    • Chrissie April 19, 2017 at 4:38 pm #

      I think maybe that you have misunderstood something about the Act Andrew. In making the determination of eligibility the assessor does have to focus on the inability to achieve against certain outcomes, and then decide what consequential significant impact this inability has. Th . It’s only when determining how needs should be met and by whom that the assessor and the person they are assessing will focus on the person’s strengths, resources, how they wish to achieve the outcomes which are important to them etc. The care act is very clear that you must have this baseline assessment of needs before you start factoring out anything that can be met by the person themselves, a willing carer, or another resource, in order to determine what needs the local authority has a duty to meet

      • Colin Slasberg April 21, 2017 at 10:08 am #

        Chrissie, its not the Care Act that requires the deficit led process you describe – which I agree is an accurate description of current process. Its a matter of policy. The particular policy is that councils will only meet needs that are a duty to meet. The Care Act does not call for this at all. It actually calls for a completely different policy when it comes to resource allocation, and one that would indeed allow the more positive and inclusive style of process that Andrew alludes to.

        • Chrissie April 25, 2017 at 6:14 am #

          And I would argue but you too are confusing two elements . The assessment should ensure that all needs ( deficits ) are identified , but the care and support planning process should be founded on an asset based approach. The idea being that if all the deficits are identified at the eligibility determination stage, then there would be a duty to meet these needs should any of the ‘assets’ not be available at a future point

          • Chrissie April 25, 2017 at 6:20 am #

            … and equally importantly , it means that if a need has been identified, and the council decides that it has no duty to meet this need , it must be able to explain how exactly the need is being met. If the need is not identified at the assessment stage, then this risks letting the Council of the hook

          • Colin Slasberg April 30, 2017 at 6:43 am #

            Again, Chrissie, your view accurately reflects current policy as set out in the Statutory Guidance to the Care Act. But what it misses – indeed completely avoids – is the issue of affordability. If the council is legally obliged to meet all assessed needs for which there are no informal assets identified at the planning stage, what if the cost of meeting the volume of needs exceeds the available resource? The Statutory Guidance simply does not address this question, its as if the problem does not exist. All it says is that councils can take resources into account in deciding how to meet needs, ie they can find the most cost effective way of doing so, but without compromising on meeting the need. But cost effectiveness does not deliver affordability. The failure of the Guidance to even attempt an answer to the affordability question amounts to a covert invitation to councils to continue to allow their ‘street level bureaucracies’ to do the job they have always done – shaping ‘need’ to suit the budget.

  2. Colin Slasberg April 19, 2017 at 7:18 pm #

    Surely the judgement did indeed test Luke Davey’s assertion that the council had set a budget and then assessed his needs to fit that budget. It chose to disagree with him. Instead the court chose to place its trust in the social worker’s assessment that he no longer required support around the clock and could do without support for 6 hours a day. It did so despite the following;

    – the same social worker only months before had said he did need support around the clock, which had been the case over some twenty years
    – nothing had changed in the service user’s situation to bring about such a volte face
    – the only events that did happen between the two assessments was the ending of ILF funding and a council funding panel decision
    – the court disbelieved the social worker’s explanation for her volte face was that the first assessment was not her real view, but just re-iterating the service users view of his needs. the court said the assessment was plainly written as the social worker’s own view.
    – the reduction of support of 6 hours a day almost exactly matched the level of support that the ILF had been funding

    If it quacks like a duck and waddles like a duck, it almost certainly is a duck. This is not a question of managerial decision over-riding social work judgement. This is about funding determining what the social work judgement should be. When it cost the council nothing, it was happy to say the service user needed support around the clock. The moment it might cost the council, the assessment changed. Presenting the assessment as if it was the social worker’s own is necessary to prove it was a decision based on need, not funding.

    The real disappointment in the case is that the Care Act was not actually tested. Davey’s legal team allowed the court to proceed on the basis that the law required the same 4 stage process established prior to the Care Act;

    1. Assess needs
    2. Decide which are eligible
    3. Decide what services are required
    4. Cost them to determine the financial value

    This becomes seriously problematic in the context of a policy of meeting only ‘eligible’ needs, ie those that are a duty to meet. It results in stages 1 and 2 being conflated. As Belinda Schwer pointed out in her recent webinar for Community Care, this process requires councils to separate out ‘needs’ and ‘wants’ – the council is legally obliged to meet the former, and has no responsibility for the latter.

    The problem with this is what happens if ‘need’ exceeds the budget? Belinda’s answer is that councils should consider using their reserves. This is, of course, not a realistic understanding of how local authority finances work. What happens in reality is that it just doesn’t happen. ‘Need’ is shrunk to deliver affordability.

    Courts are very reluctant to challenge how a council has defined ‘need’ while eligibility policies reign. They are very aware of the financial consequences, and reluctant to interfere in the legitimate democratic processes of determining spending priorities. This means, to use the vernacular, service users are stitched up time and again.

  3. Peter Feldon April 25, 2017 at 4:28 pm #

    Although the judgement did consider the whether the care plan and personal budget is adequate to meet the Claimant’s assessed needs is unlawful and also whether his needs were lawfully assessed under section 9.4 of the Act in relation to spending time alone, the way that the case was constructed did not result in the testing of whether Oxfordshire had set a budget and then assessed Davey’s needs to fit that budget.

    Prior to the Care Act the council “was happy to say the service user needed support around the clock” as Colin puts it i.e. they took a service-led approach. Certainly the withdrawal of the ILF funding meant that the care plan had to be reviewed, and in undertaking a reassessment in a needs-led way (albeit unsystematically) a different conclusion was reached.

    To Colin this looks like a duck i.e. the funding determining what the social work judgement should be. But to me it looks more like a cock-up, and the judge did a reasonable job of unravelling the inconsistencies between the poorly constructed written assessments and the subsequent witness statements.

    • Colin Slasberg April 30, 2017 at 7:05 am #

      I agree with Pete about the role the judge played in ensuring the assessment could be seen to be OK. He bent over backwards, and even went so far as to fill, from his own psycho-social thinking, what he saw as a theoretical void in the changed assessment that it was right for the SU to spend substantial amounts of each day on his own. What this demonstrates is how – under a policy where all assessed needs must be treated as a duty to meet – courts are acutely conscious of how countermanding a council determination of ‘need’ will have a major financial implication affecting all a council’s responsibilities, and that this is properly the function of the democratic process to determine, not the judiciary. It is pretty easy for councils to get away with the thinnest veneers of being needs, not resource, led.