by Alex Rook, partner, Irwin Mitchell LLP
When the Care Act came into force in April 2015, section 1(1) placed a general duty on local authorities to promote the wellbeing of the individual when carrying out their social care functions. Section 1(2) lists a range of factors that local authorities must consider in relation to an individual’s wellbeing, including for example their personal dignity, the individual’s control over their day-to-day life and their physical and mental health and emotional wellbeing.
It should be noted that the duty to “promote” well-being in section 1(1) does not mean simply that the local authority must have regard to it – the Care Act statutory guidance (paragraph 1.7) makes clear that ‘promoting wellbeing involves actively seeking improvements in the aspects of well-being’ set out in section 1(2).
Free legal learning on the Care Act
Alex Rook will examine the implications for practice of case law under the Care Act and provide advice on responding to challenges to your decisions, at this year’s Community Care Live London.
His session forms part of our new Legal Learning Hub, providing a one-stop-shop for all your training on the law. Register now for your free place at the event, on 26-27 September.
Section 1(3) then sets out a further set of factors that local authorities must have regard to in the exercise of their social care functions. These include the individual’s wishes, the importance of the individual participating as fully as possible in decisions about their social care and being supported to do so and the need to ensure decisions are made having regard to all of the individual’s circumstances.
Key Care Act case law
But what does this all mean in practice? Given that the Care Act is still relatively new, there have been very few cases decided by the courts looking at the well-being principle. Perhaps the highest profile case to date is that brought by Luke Davey against Oxfordshire County Council. Mr Davey, who is 40 years old, has quadriplegic cerebral palsy and is wheelchair dependent. He has very significant care needs and requires a team of personal assistants to help meet his needs.
He previously received a care package costing £1,651 per week, which included a contribution of £730 through the Independent Living Fund (ILF). This was used to fund a team of family and professional care assistants – largely the same team had been in place for 18 years. After the ILF closed in June 2015, the council proposed reducing his care package to a cost of £950 per week. It was suggested that Mr Davey could spend more time alone and that he could reduce the amount he paid to his personal assistants.
Mr Davey objected to this decision and took his case to the High Court, issuing judicial review proceedings in May 2016, represented by Irwin Mitchell. He relied upon the wellbeing principle to argue that the decision to reduce his care package was unlawful. In particular, Mr Davey argued that the decision was incompatible with the council’s duty to promote his wellbeing due to the anxiety which would be caused from having to spend unwanted time alone and the risk of losing his established care team of 18 years. He argued that the council had unlawfully failed to have regard to those factors in its decision-making process.
In the High Court Mr Justice Morris found against Mr Davey. While he understood why Mr Davey may have objected to the reduction in his care package, the judge found that there was no “relevant legal error” in the actions taken by the council. He accepted that the wellbeing principle imposes ‘a distinct duty upon [local authorities], in each individual case, to promote the individual’s well-being, including physical and mental health and emotional well-being’.
However, he decided that the council had fulfilled its duty to have regard to the wellbeing principle on the facts of this particular case. Mr Justice Morris found that the council had not breached section 1(2) because it had taken into account the risk to Mr Davey’s mental health and emotional wellbeing of spending more time alone. Also it had not breached section 1(3) as it had taken its decision having regard to all of Mr Davey’s circumstances, including by consistently recording the importance to Mr Davey of retaining his existing care team. He also found that there was insufficient evidence in this particular case to suggest that the care team would break up as a result of the reduced funding.
Permission to take the matter to the Court of Appeal has however recently been granted by Lord Justice Lewison, who observed in granting permission that the case raises important issues and so it was important for the Court of Appeal to hear the case. A hearing has been listed in August 2017 when the Court of Appeal will reconsider a number of these issues. We hope the judgment will be out before Community Care Live London at the end of September so practitioners will be able to reflect on the implications of the case.