Court quashes ‘unlawful’ Care Act assessment of learning disabled man

The judge found Merton council failed to show it had properly considered the man's care needs

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Photo: Gary Brigden

A judge has quashed a council’s decision to terminate a specialist residential care placement for a man with autism and severe learning disabilities.

In a ruling published this week, Deputy High Court judge Anne Whyte QC found Merton council’s plan to move the “very vulnerable” 24-year-old to a cheaper placement was based on a Care Act needs assessment that was “not lawful”.

The man, JF, cannot communicate verbally and requires a high level of constant and specialist care. Since 2012 he has lived at the David Lewis College, a specialist service in Cheshire, where he receives on-site support from a multi-disciplinary team including speech therapists, physios and occupational therapists.

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The council has funded this on-site care for 15 years. But last year it proposed moving JF to a service in Sussex where this would not be provided. In evidence, lawyers for the council said cheaper placement options were explored because the council deemed JF no longer needed this extra on-site support.

The judge found that the council had failed to justify that decision and its Care Act needs assessment failed to show JF’s need for the on-site team had been properly considered.

The man’s parents, who acted as his deputies and told the council the placement move posed a risk to his progress, had also made their opposition clear, the judge added.

She ruled the council had failed to comply with statutory duties under Care Act section 1 (to promote an individual’s wellbeing) and section 9 (assessment of an adult’s needs for care an support).

“Accordingly the assessment was not lawful. Any re-assessment of JF’s needs must be based on his current situation and not conducted (as I find it was) from the position that his placement is no longer available to him,” she said.

“It should be noted that this finding is entirely fact-specific in a case where there is a dispute about which decisions were actually made with virtually no evidence in support from the Defendant [the council] to assist the court one way or another.”

The council denied it had decided to terminate JF’s placement and claimed that the Sussex move had merely been an option “on the table”. But the judge rejected this. She said the council had “simply deferred the implementation of its decision” and it seemed “inevitable” that JF would have been moved if he had not launched a legal challenge.

The judge allowed JF’s claim and quashed the Care Act assessment. She also quashed the council’s decisions to terminate his placement and assess the Sussex unit as a suitable alternative. The council has been ordered to undertake a further assessment of JF’s needs in line with the Care Act.

9 Responses to Court quashes ‘unlawful’ Care Act assessment of learning disabled man

  1. James bannon July 4, 2017 at 10:41 am #

    Finally a ruling which considers the wellbeing principle, I hope this will now stop local authority’s cutting corners.

  2. Paul W July 5, 2017 at 1:28 pm #

    Excellent ruling, but I feel for the social worker who made/was forced into making the original decision. We continue to be put in very vulnerable – and financially-driven – assessment situations. Not sure what the answer is though?!?

    • Colin Slasberg July 6, 2017 at 3:46 pm #

      There is an answer Paul. The assessment must be based on well-being and without regard to affordability, and then the budget holder decides how much of the need can be afforded, and then the system is informed about the extent to which resources are falling short of need. It doesn’t bring about increased support for the service user now, but does enable an honest relationship and crucially, no longer allows political leaders to believe that resources are meeting all eligible needs.

    • Charles Regan July 6, 2017 at 11:44 pm #

      This assessment is but one of thousands which have been made on the basis not of need but in order to ‘save’ the organisation money. I have experienced this myself while fighting to obtain CHC funding for my father. I have attended ‘assessments’ where his actual needs have been claimed to be at a lower level and agreed levels of need have been marked down by so called ‘multi disciplinary teams’ after assessment meetings. I have been shouted down at meetings, been deliberately misrepresented, my emails, letters and telephone calls have gone unanswered and members of staff have deliberately ignored evidence based documents, claiming that they are not evidence based. When challenged they terminate the calls without warning.

      I have absolutely no sympathy for so called ‘professionals’ who do this in order to save their organisation money. It is unethical, it is unprofessional, it is cheap and where the cost of care is passed on to the patient or the patient’s family when the CCG or whoever should be funding it it constitutes fraud.

      People who behave in this manner do not deserve to be in ‘professional’ jobs. Their primary duty of care is to the patients and they have absolutely no right whatsoever to embrace the cost cutting exercises so beloved of some organisations these days in order to protect their own position. There is absolutely no excuse whatever for the kind of disgraceful behaviour I have witnessed and had to deal with in the name of cost cutting.

  3. Vic L July 5, 2017 at 5:46 pm #

    I work in LD Health Services and face this challenge every working day from Social Care, it’s so heart braking. We have full assessments and recommendations that are disregarded. Why is the cheap option to push people from there homes and move them to an unsettled state. How about we take note of literature and learn from past mistakes, lets develop services and implement training to upskill and maintain the lives of people we care for, let’s maintain our health and social care budgets instead of robbing Peter to pay Paul. I get the cuts to Social Care and the pressures to staff but the basic human rights are breached on so many levels that nearly every complex case needs a lawyer! The Care Act has not been enforced correctly, training and increased pressures means poor interpretation and assumptions. Assumptions lead to failings and that’s how deaths occur. There are detrimental breaches in every Care Assessment I have seen. #people first #valuing people #longtermsaving=respect

  4. Jimi July 6, 2017 at 3:40 pm #

    Finally the wellbeing of the individual was considered and the council cheaper option seen for what it is. ……

  5. Colin Slasberg July 6, 2017 at 4:23 pm #

    Merton can jump one of three ways: 1). learn from Oxfordshire (http://www.communitycare.co.uk/2017/03/10/can-move-away-care-needs-defined-resource/) that basically you can give the appearance of the decision being needs led and not resource led with very little effort and get away with it 2). carry out an honest assessment as required by the Act which can no have no regard to affordability, and then make an honest decision about how much can be afforded. This wont give the SU the service he needs, but is at least honest. Just as important, it will ensure Merton knows how much its resources are falling short of needs, and will no longer be able to say all assessed are met 3) give the service user the service he needs by finding the money. But if they jump this way, will Merton declare what the implications of the decision mean for all their other service users? Is a precedent set, or will they just have to have a little less to pay for it?

    It will be interesting to know what they choose.

  6. Jacqueline July 16, 2017 at 2:32 pm #

    After reading this, may I suggest you reading the Policy of Safeguarding of Adults and Vulnerable Adults your Local Council should have a Policy ti protect the People. It is LAW ti have in place.

Trackbacks/Pingbacks

  1. Community Care Article- A watershed moment for the Care Act? - Kent, Surrey & Sussex Learning Disability CoP - July 19, 2017

    […] The High Court’s use of the Care Act to quash Merton’s decision to transfer a service user (JF) to a cheaper service has raised hopes the act might yet deliver on the promise to lead social care away from being rooted in a resource led view of need to one authentically person centred. […]