By Pete Feldon
Luke Davey’s legal challenge to cuts to his personal budget is the first time that the Court of Appeal has ruled on the Care Act 2014 and the earlier judicial review was also the first of its kind, so it is important that social workers reflect on the implications of these rulings and learn how to avoid judicial reviews in similar circumstances.
In dismissing his appeal, the court ruled that the views expressed by the social worker in witness statements were genuinely held, and also that it was right that the court should take them into account even though they were not in accord with the case records. This means that where a case goes to judicial review, clarifications set out in witness statements can be accepted where they significantly add to what is set out in the case records – even if they might be contradictory.
Luke Davey was against some of the decisions of a judicial review in March. He was seeking to overturn the reduction to his personal budget made by Oxfordshire council, which was previously part-funded by the Independent Living Fund. The council reduced Luke Davey’s personal budget from £1,651 per week to £950 per week after the ILF closed in June 2015.
The primary focus of the appeal was in relation to Section 1(3)(d) of the Care Act, which states that in promoting an individual’s wellbeing a local authority must have regard to “the need to ensure that decisions about the individual are made having regard to all the individual’s circumstances”.
In the judicial review it was highlighted that there were contradictions between the case records and the professional judgments set out in the witness statements, about the extent to which Luke Davey could spend time alone. The subsequent witness statements provided some clarity about the relationship between Luke Davey’s needs and how they would best be met, and at the judicial review the judge was able to conclude that there was some merit in the social worker’s contention that spending time alone would help Luke Davey in developing independence.
As part of the case in the Court of Appeal, Luke Davey’s legal representative challenged the validity of this aspect of the social worker’s witness statement as being “an afterthought not expressed in the contemporaneous documents”. This challenge was rejected and Lord Justice Bean stated that he agreed with the observations of Hallett LJ in R (Ireneschild) v Lambeth LBC  EWCA Civ 234, paragraph 57:
One must always bear in mind the context of an assessment of this kind. It is an assessment prepared by a social worker for his or her employers. It is not a final determination of a legal dispute by a lawyer which may be subject to overzealous textual analysis. Courts must be wary, in my view, of expecting so much of hard pressed social workers that we risk taking them away unnecessarily from their front line duties.”
This adds to what Justice Morris had stated in the High Court judgement. He responded to the submission on Luke Davey’s behalf that “further evidence … explaining the assessment and personal budget should not be admitted, where they contradict the contemporaneous record”, by stating: “Even where a needs assessment has been found to have been inadequate, there may be no point in exercising discretion to order relief, where due to subsequent explanations it is clear that re-assessment would lead to the same result and it is now fully and adequately explained.”
The Court of Appeal also made it clear that it would not rule on the criticism of Luke Davey’s legal representative that the view expressed by the social worker was irrational. The judge stated: “I am not an expert in the field, and I cannot possibly say that the view expressed by Ms Lovelock is irrational.” However, whether or not the social worker’s view was irrational was not considered significant by the Court of Appeal, as it had already made a determination on the issue in question, i.e. that there was no evidence that the existing team of personal assistants would break up.
The original assessment took place shortly after the Care Act was implemented in April 2015, at a time when social workers were still adjusting to the new requirements. It was certainly the case that what was set out in the case records was not expressed in a needs-led way. It is possible that a judicial review might have been avoided if the original needs assessment was more in accordance with Care Act principles: i.e. setting out the activities and tasks that Luke Davey has difficulty with as a result of his physical impairment; determining the extent to which these have a significant impact on his wellbeing; and then developing a plan to reduce the impact, utilising his strengths and preventive services. An outline of how this could be achieved is included in my analysis of the judicial review published in March 2017.
Where social workers are able to apply the legislation in a legally literate way and are not hampered by poorly drafted local policies and procedures, disputes that result in judicial reviews will be unlikely in respect of their professional practice. However, it remains to be seen whether legal challenges will take place on the key issues of what constitutes significant impact on wellbeing and determining the sufficiency of a personal budget to meet needs.
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 and the A-Z of the Care Act 2014 available on Community Care Inform Adults. You can hear Pete speak at Community Care Live London on 26 September on ‘Carrying out legally literate reviews where there are pressures to make savings’.