By Rachel Carter and Alex Turner
A service user group and Britain’s statutory equality organisation are to intervene in the case of a disabled man that could have significant implications for the application of the Care Act 2014’s wellbeing duty.
Luke Davey’s appeal against an earlier High Court judgment, which dismissed his case that Oxfordshire council’s decision to cut his care package breached the Care Act, will be heard in the Court of Appeal tomorrow (17 August).
Inclusion London, a charity for deaf and disabled people, has made a submission to the court to highlight the impact the case – believed to be the first legal challenge dealing with the Care Act’s wellbeing principle – could have on the lives of disabled people.
A spokesperson told Community Care that the organisation wanted to make it clear to the judges that this case “was not just about a single care package”.
The Equality and Human Rights Commission (EHRC) has also made a submission to the court in relation to the UN Convention on the Rights of Persons with Disabilities (UNCRPD) and its “meaning and relevance” in terms of applying the Care Act.
Davey brought a judicial review last year on the grounds that Oxfordshire’s decision to reduce his weekly personal budget by 42% was unlawful because it posed a direct risk to his wellbeing.
He argued that the cut could mean he would spend more time alone, which would cause him anxiety, and that it risked losing his established care team of 18 years.
The case was dismissed by Justice Morris in the High Court, who said it was understandable Davey objected to the cut, but there was “no relevant legal error” in the council’s actions.
Inclusion London’s submission focuses on two elements of the case. Firstly, that the judge held that Oxfordshire did not have to make “judgements about the future” when considering how the cut to Davey’s package would impact his existing team of personal assistants.
Secondly, it refers to Justice Morris’s reliance on the council’s assertion that a volunteer or family member would be available to take Davey on day trips, and his conclusion that Davey’s ability to take part in a wide range of social activities would not be affected.
The charity argues that both these conclusions are contrary to the Care Act statutory guidance on unpaid carers and wellbeing. Section 1 of the Care Act 2014 places a duty on councils to promote a person’s wellbeing when making decisions about their care.
It has urged the court to consider the underlying principles and intentions of the act and to recognise their fundamental importance to the lives and independence of disabled people.
Anne Novis, chair of Inclusion London, said the charity was intervening in the case because it wanted to “make sure the Care Act works for disabled people as it was meant to”.
She added: “Although the Care Act and the introduction of the wellbeing principle were meant to transform social care and put us and our wellbeing at the centre of the process, we know it does not happen in practice. Disabled people tell us their support packages are being cut to the bare minimum and their views don’t matter. Such cuts leave disabled people at risk of harm, and cause emotional, physical and mental distress.”
Louise Whitfield, partner at Deighton Pierce Glynn and the charity’s lawyer, added: “This is a hugely significant moment, because disabled people are intervening in proceedings to make their voices heard and ensure the law, designed to transform social care, works for them.
“This case is likely to determine how the wellbeing duty, which was introduced by the Care Act, will be applied in practice and what difference it will make.”
The Care Act and independent living
Article 19 explained
Article 19 of the UNCRPD, on ‘Living independently and being included in the community’, states:
States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
(b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;
(c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.
The Equality and Human Rights Commission’s submission to the court, meanwhile, argues that the Care Act “represents a re-focusing of the statutory framework for the provision of adult social care, in accordance with the UNCRPD and in particular Article 19, which puts the disabled person at the centre of all decisions”.
Justice Morris’s High Court judgment, the EHRC argues, incorrectly emphasised the lack of direct rights and obligations created by the UNCRPD within UK law. The judge failed to recognise that the Care Act “intended to apply these principles and should be interpreted accordingly”, its submission says.
The document notes a government response to a 2016 UN committee report that criticised how well the Care Act aligns with Article 19, in the wake of welfare reforms and local authority budget cuts.
In the response, the government said: “The wellbeing principle is intended to cover the key components of independent living, as expressed in the UNCRPD (in particular, Article 19 of the Convention). Supporting people to live as independently as possible, for as long as possible, is a guiding principle of the Care Act.”
Rebecca Hilsenrath, the EHRC’s chief executive, described Davey’s case as an important one that would give disabled people a “louder voice” when their needs are being assessed.
“Disabled people must be able to live independently and take part in activities others take for granted,” Hilsenrath said. “When assessing the needs of disabled people the local authority should consider the person’s ability to have a social life and be an active member of their community, not just basic home care needs.”
Davey is appealing on the grounds that Justice Morris made “very significant errors” when rejecting his argument that a risk to his wellbeing would arise if his team of personal assistants broke up because of the proposed reduction in their terms and conditions.
The case will be heard at 10.30am on Thursday 17 August.
Inclusion London will stage a vigil outside the court from 9.15am.
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