In the recent judicial review of JF v The London Borough of Merton, deputy High Court judge Anne Whyte QC quashed Merton council’s decision to move JF, a “very vulnerable” man, to a lower-cost placement, and ordered that Merton must undertake a further assessment of JF’s needs in accordance with the provisions of the Care Act 2014.
Merton proposed that JF should be moved to a lower-cost placement because he no longer required one of the services provided by his existing placement. JF’s legal representatives were successful with their submission that Merton had “failed to undertake a lawful assessment of JF’s needs” and that they had “unlawfully decided to change or to propose to change his accommodation”. They were also successful with their request for “an order quashing the assessment and decision to move him and an order requiring LBM to undertake a re-assessment of needs”.
This article sets out how the social worker who is given the task of this reassessment can ensure that it is undertaken in a legally literate way.
Review of the care and support plan
Although the requirement is to reassess JF’s needs, I suggest that it would be better to undertake this reassessment in the context of a review of his care and support plan, in accordance with section 27 of the Care Act. This will help to ensure that there is a robust consideration of how JF’s needs are best met, and it also means that a revision of the care and support plan can be considered – even if JF’s needs have not changed.
It is important to undertake a review that includes both a reassessment of needs and a revision of the care plan.
The judge was clear that the decision by Merton that JF no longer requires access to an on-site MDT (multidisciplinary team) and the provision of a TCE (Total Communication Environment) was neither rational nor lawful. The expectation is that this will be addressed in the reassessment, although strictly speaking a reassessment does not include a determination of how a local authority is going to meet needs. This is part of the care and support planning process as specified in section 25 of the Care Act. Hence the importance of undertaking a review that includes both a reassessment of needs and a revision of the care and support plan.
Wellbeing and outcomes
Attention must be given to making sure that the reassessment considers JF’s wellbeing and how this is promoted, as the previous assessment was deemed unlawful in this respect. A key area for professional judgement is determining the significance of the impact of what JF is unable to do or has difficulties with. In addition, the judge highlighted that the duty to promote wellbeing applies when implementing a plan to meet an individual’s needs, and that if JF is to be moved to a new placement then Merton “will therefore need to manage any transition in a way which complies with” this duty.
With regard to the outcomes that JF wishes to achieve the judge stated that “there is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes”. However, it is important for social workers to be mindful of how the Care and Support Statutory Guidance (revised February 2017) frames this duty. It sets out, in what is described as a ‘guiding principle’ in paragraph 10.5, that the process of developing a care and support plan “should be person-centred and person-led, in order to meet the needs and achieve the outcomes of the person in ways that work best for them”. Social workers will want to demonstrate that these essential elements of professional practice have been applied.
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If Merton concludes that there are potentially lower-cost placements that could meet JF’s needs, this will have to be on the basis that either there has been a change in JF’s eligible needs and he now no longer requires access to an on-site MDT and TCE to ensure that these eligible needs are met; or, if these needs have not changed, that there are other ways of meeting his needs that do not involve on-site MDT and TCE.
If they determine that there has been a change in JF’s eligible care and support needs such that he no longer requires the on-site MDT and TCE to meet particular needs, these needs still have to be considered and cannot be identified as a “non-need” as Merton sought to do in its submission (see paragraph 42 of the judgment). It may be that a reduction is identified in the nature of these particular needs – to the extent that they can potentially be met in a different way.
Alternatively, it may be that these particular needs no longer meet the eligibility criteria. In this case Merton must make a decision about whether it is going to meet these non-eligible needs. If not, the social worker must give the reasons for this in writing and also provide advice and information about what can be done to meet or reduce these needs and prevent or delay their development (see section 24 of the Care Act).
Social workers will need to carefully consider JF’s preferences regarding his placement. Where there is a preference for a particular care home, this must be adhered to if the criteria are met as set out in the Care and Support and After-care (Choice of Accommodation) Regulations 2014. Merton would be bound by JF’s preference for his current placement if “the preferred accommodation is of the same type as that specified in the adult’s care and support plan” as set out in 3(1)(b) of these regulations. However, if regulation 3(2) is applicable, i.e. that “the cost to the local authority of providing or arranging for the provision of the preferred accommodation is greater than the amount specified in the adult’s personal budget that relates to the provision of accommodation of that type”, then JF could only secure this accommodation by paying a top-up.
The judge accepted that JF’s parents could legitimately state a preference on his behalf in respect of the existing placement. However, it would seem likely that section 67 of the Care Act would apply in this case, whereby a local authority must “arrange for a person who is independent of the authority to be available to represent and support the individual for the purpose of facilitating the individual’s involvement”.
The local authority is required to appoint an independent advocate unless someone is willing and able to take on the role of ‘appropriate person’.
It may well be that Merton decides that one of JF’s parents meets the criteria for this role, but in the circumstances of this case Merton may wish to appoint an independent advocate using regulation 4 of the Care and Support (Independent Advocacy Support) (No.2) Regulations 2014. According to paragraph 7.42 of the Care and Support Statutory Guidance, an advocate can be provided, even where there are family or others who can facilitate the person’s involvement, “where there is a disagreement, relating to the individual, between the local authority and the appropriate person whose role it would be to facilitate the individual’s involvement, and the local authority and the appropriate person agree that the involvement of an independent advocate would be beneficial to the individual”.
If the personal budget (as required by section 26 of the Care Act) is to be revised, the social worker will want to make sure that it is sufficient to meet the needs that Merton has agreed that it will meet (as set out in paragraph 11.10 of the Care and Support Statutory Guidance). Merton must also include what section 26 describes as “the cost to the local authority of meeting the adult’s needs”.
In making the final decision about where JF is to be placed, Merton will no doubt be mindful of the comments made by the judge about the lack of evidence that was available to justify the previous decision to change JF’s placement, and scrupulously apply the statutory guidance on calculating the personal budget (Care and Support Statutory Guidance, paragraphs 11.22-28).
In this case some of the key legal rules of the Care Act were clearly not applied. To avoid a further judicial review in this and other cases, Merton may want to develop more robust local procedures that closely follow the statutory guidance. In addition, it may want to ensure that key staff have the necessary legal literacy, and this will include ensuring that all of its social workers are working towards achieving professional capability in demonstrating “a critical understanding of the legal and policy frameworks and guidance that inform and mandate social work practice, recognising the scope for professional judgement”, as set out in the Professional Capabilities Framework.
Pete Feldon is an independent Care Act trainer and author of The Social Worker’s Guide to the Care Act 2014, published by Critical Publishing in May 2017.