Disabled man loses landmark Care Act appeal over care package cut

Luke Davey has lost his appeal against a High Court ruling that upheld Oxfordshire council’s decision to cut his personal budget by 42%

Royal Courts of Justice
Photo: Gary Brigden

A disabled man who lost a High Court challenge over cuts to his care package has had his case dismissed by the Court of Appeal.

Luke Davey, 41, had appealed Justice Morris’ ruling that there was “no relevant legal error” in Oxfordshire council’s decision to cut his weekly personal budget by 42%.

Davey appealed on the grounds that the judge made “very significant errors” when rejecting his argument that a risk to his wellbeing would arise as a result of the cut.

What this case means for you

The implications of the Davey case for social workers will be discussed as part of a session on the Care Act 2014 at this month’s Community Care Live London.
Public law solicitor Alex Rook will look at the lessons from this and other cases and advise practitioners on how to respond to challenges to their decision-making.
Register now for your free place.

His case, believed to be the first dealing with the Care Act’s wellbeing principle, was dismissed in the Court of Appeal last week. The judges, Lord Justice McFarlane, Lord Justice Bean, and Lady Justice Thirlwall, concluded that the “very significant reduction” to Davey’s personal budget had been reached “at the end of a lawful process”.

‘Risk to wellbeing’

Davey, who has quadriplegic cerebral palsy, originally brought a judicial review on the grounds that Oxfordshire had breached its Care Act duty to promote his wellbeing.

He said that the cut to his care package posed a direct risk to his wellbeing because it could mean he would spend more time alone, which would cause him anxiety, and it also risked losing his established care team of 18 years.

Justice Morris dismissed this argument for two reasons. He concluded there was “no sufficient evidence” that the changes in terms and conditions had, or would, result in a break-up of the team of personal assistants, and that the council had considered that such a change would actually be positive for Davey and his emotional wellbeing.

‘No sufficient evidence’

Davey argued in the Court of Appeal that nowhere in his assessment and care plan did the council suggest it held this view, and that there was evidence that it accepted a change in his care team would pose considerable risks to his wellbeing.

He also argued that, in reaching his conclusion, Justice Morris made statements about the law that were “wrong or liable to be misunderstood”.

The appeal judges supported Justice Morris’ finding that there was “no sufficient evidence” that the change would result in the team of personal assistants breaking up.

Lord Justice Bean added that he was “quite satisfied” that the council “genuinely held” the view that a break-up of Davey’s care team could actually be positive, although he agreed it did seem “counter-intuitive” given that the team had looked after Davey for so long.

He said in the judgement: “In any event, if the judge was entitled, as I have held that he was, to find that there was no sufficient evidence that the existing team of PAs would break up, the issue of whether or not that would be a positive move in reducing the Claimant’s dependence on them simply does not arise.”

‘Hopes destroyed’

The case prompted service user group Inclusion London, and the Equality and Human Rights Commission, to intervene and make submissions to the court.

Svetlana Kotova, disability justice coordinator at Inclusion London, said the decision was “very disappointing” and illustrated the “devastating impact” of government policy.

She added: “Many people like Luke Davey, who were supported by the Independent Living Fund, had their support packages cut to the bare bone. With those cuts went their independence, choice and control and the opportunity to live a normal life. Today the Court of Appeal confirmed that local authorities can get away with doing this.

“Without adequate levels of support, disabled people are existing not living. This case has destroyed any hopes that the Care Act 2014 will transform our experience of social care.

“It is time the government recognises and urgently addresses the huge crisis in social care, through ensuring adequate funding and the introduction of an appeals system, which would give disabled people a fair chance to challenge the views and decisions of social workers.”

‘Appropriate and lawful’

A spokesman for Oxfordshire County Council said: “We will continue to work with Mr Davey and his family to ensure he gets the provision of essential services he needs.

“The Court of Appeal has confirmed that the council’s assessment of Mr Davey’s care needs and the allocated amount for his personal budget is appropriate and lawful.  All local authorities who provide adult social care services against a background of financial constraints in the public sector are having to make difficult decisions.”

*Story updated on Monday 4 September to include detail from the judgement

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4 Responses to Disabled man loses landmark Care Act appeal over care package cut

  1. Santino September 1, 2017 at 1:40 pm #

    One of the first challenge’s on the Care Act 2014, but the Local Authority position in the case of
    R v Gloucestershire County Council ex parte Mahfood & Others (1995) 160 LG Rev 321, 30 BMLR 20) is a double headed coin which has been the case for over 20 years year since then we have had the Human Rights Act 1998 and more.
    What now appeal to the Supreme Court, if so different line of challenge required.

    Similar issues of assessments and funding for 1995 & 2011.

    ( Rv McDonald) v Royal Borough of Kensington & Chelsea [2011] UKSC 33, [2011] 4 All ER 881 the Supreme Court confirmed that it is principally for a local authority to take these hard decisions in individual cases, not the courts. So, once a local authority had formally reassessed community care needs, it was entitled to decide to save some £250 per week by supplying continence aids rather than funding a night-time carer.

    R v Gloucestershire County Council ex parte Mahfood & Others (1995) 160 LG Rev 321, 30 BMLR 20).

  2. Martin webb September 1, 2017 at 6:37 pm #

    This is bloody disgusting

  3. Ruth Cartwright September 4, 2017 at 12:53 pm #

    One is just left with the feeling that, as in so many areas, the reason for care package cuts are financial shortfalls, but rather than being honest about it and allowing Social Workers to be honest about it, someone is told (sometimes abruptly) that they don’t need as much care as they were assessed as needing before (almost as if they had been taking advantage of the system previously and having money they weren’t entitled to). In this specific case, the reduction in care and support may have been justified to help Luke Davey become more independent, but this clearly is not this understanding of the situation and he has been caused great distress. Some of this (as so often) comes down to communication of course and the way decisions are shared with service users, decisions which they may not have been involved in. I think local authorities and their staff should be honest about Government cuts and the impact of them.

  4. Anita Singh September 4, 2017 at 7:51 pm #

    42% is a MASSIVE reduction. Perhaps the judges would not mind having their income cut by the same amount, I wonder what their reaction would be if that was to happen?

    The cost of the current team would have been assessed, so it is not clear how a 42% reduction in the money, would not reduce provision. Stating that it would not lead to a break up of the team, is suitably vague. What it does lead to is a massive reduction in service provision?

    And, Judicial Review should not be based on government policies to drastically slash services. The Courts are simply becoming an extension of the political establishment. A rather slippery slope….