By Pete Feldon
The High Court has upheld a claim for the funding of night-time care for two very disabled young men pending a reassessment, and in doing so brought some useful clarity about the law on ‘urgent need’ under the Care Act 2014.
The judge concluded that a court hearing shouldn’t have been needed and the unfolding of events that led to this conclusion provide a fascinating glimpse of the interaction between the legal and social work perspectives in this local authority.
Two adult brothers, Mohammad Ali Raja and Haider Ali Hussain, live with their mother, Rukhsana Hussain, and have a care package funded by the London Borough of Redbridge.
Mrs Hussain had been providing night-time care by herself, which involved changing incontinence pads and repositioning her sons, but she said she couldn’t continue doing this because it was detrimental to her health. She requested that 10 hours of care be provided a night by a single carer, pending a reassessment.
Redbridge decided that a reassessment was necessary but would not agree to a request for interim care to be provided whilst the reassessment was undertaken. Six months after Mrs Hussain requested extra help, she was still providing night-time care.
At this point proceedings in the High Court were initiated. The High Court ordered that interim care be provided immediately by Redbridge, pending the outcome of a judicial review.
The case was heard in the High Court by Mr Justice Fordham at the end of April, in the middle of lockdown (and was conducted remotely). As you would expect there were various legal arguments put forward by Redbridge, but none of these were accepted.
Prior to the court proceedings commencing, the local authority’s position was clarified in December 2019 in a letter from their legal services, which stated that “the local authority cannot provide the service without first assessing the need and what equipment is required”.
‘Not acting reasonably’
They later stated that “we do not agree that this need is urgent”, and cited “lack of evidence demonstrating the need for 24-hour support”. However, the judge concluded that at this point the local authority “was not acting reasonably – in the light of the experts’ reports put forward in October 2019 – in refusing to exercise its discretionary power to provide urgent night-time care and support”. The reference here is to occupational therapy reports for each of the brothers commissioned by the family’s solicitor.
Part of the legal argument about urgency was Redbridge’s contention that the power to respond to urgent need set out in section in 19(3) of the Care Act “is only applicable before an initial statutory needs assessment has been conducted” and therefore does not apply to a reassessment. The judge ruled as follows: “The fact that there is an existing care and support plan, to which the section 27 function of review and revision is applicable, does not exclude any application of section 19(3).”
The substantive matter for the judicial review was whether there should be the continuation of this interim care provision ie “an order requiring interim care and support, pending a full reassessment of needs”.
Community Care Inform Adults users can benefit from an analysis of the case, written by legal editor Tim Spencer-Lane, who led the Law Commission’s review of social care law that was the basis of the Care Act 2014.
Each side normally submits documents well in advance of the hearing and Mr Justice Fordham noted: “In the materials filed in behalf of the defendant during the proceedings, supporting the continued refusal of interim care provision and the continued resistance of these proceedings, the Court was shown no document which addresses the question whether the mother can reasonably be expected to reposition her sons at night, single-handedly, and concluded that she could.”
Just before the hearing was due to take place, Redbridge submitted additional documents including assessments from an OT and a social worker. Although they both noted that the reassessment was not yet complete, the social worker unequivocally stated that each of the disabled adults “requires 24-hour support in order to remain safe within his living environment” and “requires the support of two people, to assist with repositioning and with all transfers”, and also “is doubly incontinent and is dependent upon two people to change his pads”.
Nevertheless, the Redbridge legal representative, in its skeleton argument for the hearing, stated: “Although it is accepted that the claimants need night-time care, there is no evidence that [the mother] cannot presently meet those needs pending a determination by the defendant in the course of a proper assessment, as she has been since her agreement to that in 2017″.
Praise for social worker
The statements by the social worker led the judge to conclude that Redbridge had in fact decided “that the interim care provision should continue until the completion of the steps relating to the reassessment of needs”. This was confirmed under questioning from the judge of the Redbridge legal representative, and it transpired that the results of this assessment had not been conveyed to the family, despite repeated requests from their solicitor.
The judge concluded that if the local authority “had focused on the key question about the mother being expected to reposition the claimants at night single-handedly, and had decided to make the interim care provision, there would have been no need for legal proceedings”.
Furthermore, the judge stated: “No substantive hearing should ever have been needed in this case, after Mr Knight (social worker) considered the position in January 2020.”
It would seem that once the social work assessment was introduced into the proceedings, then the legal defence being made by Redbridge was significantly diminished. One can only speculate as to why this assessment came so late in the day and that it was not conveyed to the family until the case came to court.
Whilst the judge was critical of the local authority for not taking action to remedy matters and avoid the case coming to court, he commended the social worker by stating that “when he evaluated the position he did so straightforwardly, by reference to his assessment of the merits, and not at all ‘defensively’ given the litigation”.
This case highlights the difference between social work and legal roles in relation to the law.
Social workers have the responsibility for applying the legal rules in accordance with their professional judgment, whereas lawyers address matters where the legal rules require interpretation. In this case Redbridge’s interpretations of the law were not accepted by the judge and he had no reason not to accept the assessment of need undertaken by the social worker.
Pete Feldon is the author of The Social Worker’s Guide to the Care Act 2014 (Critical Publishing Ltd)