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.
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.