A severely disabled man has lost a High Court challenge over cuts to his care package he claimed breached the Care Act.
Luke Davey, 40, brought a judicial review on the grounds Oxfordshire council’s decision to reduce his weekly personal budget by 42% was unlawful as it posed a direct risk to his wellbeing.
Justice Morris dismissed the case, saying it was understandable Davey and his family had objected to the cut but there was no “relevant legal error” in the council’s actions.
He said: “The result may impose change or even strictures upon the claimant which are unwelcome, but that does not of themselves mean that the process has been unlawful.”
‘Risk to wellbeing’
Davey has quadriplegic cerebral palsy and is wheelchair dependent. He requires assistance with all of his personal care needs and has been supported by a stable team of personal assistants for nearly 20 years.
He received a care package costing £1,651 per week, including a contribution of £730 through the Independent Living Fund (ILF). However, after the ILF closed in June 2015 Oxfordshire council proposed reducing his personal budget to £950 per week.
Davey said the proposed personal budget would not meet his needs and told the court that two of the council’s reasons for making the cut posed a risk to his wellbeing.
The first was that he could spend more time alone without the benefit of a personal assistant. Davey said this would cause him anxiety. The second was that he could reduce the rate of pay, and the terms and conditions, of his personal assistants. Davey said this risked losing his established care team of 18 years.
He argued that the changes would be in breach of the council’s duties under the Care Act 2014, including the section 1 requirement to promote a person’s wellbeing when making decisions about their care.
He also argued the cuts were “Wednesbury unreasonable” – a reference to a landmark court ruling seen as setting a standard for unreasonableness in public-body decisions.
‘Independence and anxiety’
The council accepted Davey had experienced anxiety when left alone in the past. However, his social worker said she had assessed that Davey’s need, and the best way to reduce that anxiety, was to develop greater independence rather than a need to never spend time alone.
Justice Morris acknowledged that Davey had suffered “serious anxiety and panic attacks” when left alone in the past, but he was satisfied the council had considered the risk to his psychological wellbeing. He concluded the council met its duty under section 1 of the Care Act and that the social worker’s assessment could not be “Wednesbury” unreasonable as this was a matter for her professional judgement.
On the risk of Davey losing his established care team due to him having to cut pay and conditions for them, Justice Morris found that the council met its section 1 duty to “have regard” to all of the individual’s circumstances.
He found the council had “consistently recorded” that it was important to Davey to retain his existing care team. He added that there was “no sufficient evidence” that the changes in pay and conditions had, or would, result in the break-up of that team.
The case is believed to be the first legal challenge dealing with the Care Act’s wellbeing principle. Prior Care Act-related challenges heard by the courts concerned advocacy provision.
Read the full judgement here.
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This case as it stands appears to confirm rejection of the argument made by Equality and Human Rights Commission (“EHRC”) and others that the United Nations Convention on the Rights of Disabled People (UNCRDP) has any enforcability in UK law.
I am astounded that professional judgement by psychologist etc, have been overturned by someone who is not trained. Had further counselling or assessments been sought? and who is monitoring the effects of removing services and how? the social services who are trying desperately to cut funding.
Like all phobias they should have a degree of specialist input and support.
The ruling found the local authority weren’t responsible, and the needs sound more closely linked to health needs than social care. Perhaps the health service should step up? Not that he’d ever meet the criteria for CHC. I’m beginning to think such funding is a myth.
The judgement relied on the professional judgement of a single social worker. That ought to be challenged, since another social worker might take the reasonable judgement that his needs were being adequately met by his existing care package and that cuts would adversely affect his well-being now and in the future. The impact of cuts must now be monitored which will also have cost implications.
Whatever the Care Act says about ‘promoting individual well being’, risk management is still key to local government thinking in adult social care: reduce dependence on statutory services [thereby reducing cost to the public purse]. A laudable and necessary aim – one consistent with other statutory fiduciary duties Council must discharge – but not supposedly what the Care Act was all about. Mr Davey is largely content to live a safe existence – and who shall blame him? So why should social workers or the law be urging him to ‘become more independent’? Why – because it’s public money of course. Same with welfare benefits or the NHS. Harsh maybe, but fair.
Arguably though, if Oxfordshire thought that the man’s carers were curtailing or harming his independence then they should have done something about that years ago. To tag it on to the ending of the ILF is a bit dodgy and post hoc in my view – pity the judge didn’t address that point.
I’m glad though at least that the UNCRPD has been booted into touch – not that it’s a bad thing in itself, far from it, but adding it to the statutory Guidance when it had been deliberately left out of the Act was a sneaky trick by the policy wonks at the Dept of Health that has been rumbled.
One other more general point about the adult social care workforce: it’s mostly female, largely part-time, in short supply, and not well paid. None of that counts in this case, nor should it. However, the whole thrust of the Council’s plans to build in two hour periods of being without carers will be to create more split shifts for the staff. Those are generally anathema to workers, who have double the travel time and cost, no chance to do anything useful in their downtime, and so forth. They hate split shifts more than anything. Does anyone care? No is the answer. In the whole ‘personalisation’ debate the needs of the workforce never get a mention.
Not saying that should be a determinant in this case – the judge has made it perfectly clear why it shouldn’t be – but any diminishment of T&Cs for care/support staff will cause great harm in the long run. If other Councils follow Oxfordshire’s lead in similar cases, this may end up breaching one other statutory duty under the Care Act – to sustain the market for care.