By Pete Feldon
A recent High Court judgment, which found that a local authority acted unlawfully in deciding how to meet a person’s needs, provides helpful guidance for practitioners on applying the Care Act 2014 and its statutory guidance.
This article examines the importance of the judgment for decision-making about personal budgets and also responding to complaints, and highlights the implications for defensible decision-making and the Care Quality Commission’s new responsibility for assessing how local authorities discharge their Care Act duties.
In P, R (On the Application of) v London Borough of Croydon, P had a range of disabilities, and, in March 2020, aged 25, returned from a specialist college to live with her parents.
Understand the Care Act 2014
To understand the key concepts in adult social care legislation in England, see Pete Feldon’s A-Z of the Care Act 2014, available to all subscribers to Community Care Inform Adults.
She previously received, from Croydon council, a personal budget for 30 hours per week – with the authority having agreed, but not implemented, an increase to 35 hours – along with additional support from the college.
To meet her needs after returning home, an assessor from Croydon determined, in October 2021, that she required 96 hours of care per week and an indicative budget was set at £1,200 per week.
Indicative budget cut by panel
Croydon’s funding panel then considered the assessment and indicative budget but decided the personal budget should be £437.50 per week, which would fund 35 hours.
When P and her family sought to challenge this, they were told that the panel would only reconsider if P and her family agreed to a reassessment. The family then lodged a judicial review, arguing that there was no need for a reassessment as the assessment accurately reflected P’s needs and “there had been no reasonable explanation” of how it was wrong.
The grounds considered by the High Court were that Croydon had:
- Failed to meet P’s needs.
- Failed to assess her carers’ needs.
- Acted unlawfully in calculating her personal budget in that it failed to comply with the statutory guidance under the Care Act 2014.
- Acted unlawfully in preparing and producing her care and support plan in that it failed to comply with the statutory guidance.
The judge determined that the council had acted unlawfully in relation to grounds 1, 3 and 4, and quashed Croydon’s decision that P’s needs could be met by a 35-hour personal budget. A ruling was not required on ground 2 as Croydon agreed that a carer’s assessment should be carried out.
Failure to meet needs
In relation to ground 1, the court ruled that Croydon’s decision to provide 35 hours was unlawful because “no (or no adequate) reasoning” was ever provided to P or her family to explain the decision.
Croydon’s defence, set out in a witness statement, was that its assessor had wrongly not taken into account the level of support being provided by P’s family.
As per section 18(7) of the Care Act 2014, councils are not under a duty to meet a person’s eligible care and support needs where these are being met by a carer.
However, David Pievsky KC, sitting as a deputy high court judge, said that, while the council was entitled to reject the indicative budget, it needed to set this out in “a reasoned, procedurally fair, and reasonable decision”. As this had not happened, the decision-making process was ruled unlawful.
Damningly, the judge concluded: “The claimant’s family were not even told about the fact of the decision (which appears to have been made at a meeting of the funding panel of the defendant, at which (I was informed) no minutes were taken), let alone the reasons for it.”
Need to provide reasons for decision-making
While the need to provide reasons for decisions about how to meet an eligible person’s needs under section 18 of the Care Act applied generally, the judge said the requirement “was particularly acute in the circumstances of this case”, including because:
- Croydon was “radically departing from a recent recommendation contained in one of its own assessments”, and reasons were likely to be required when a public body decides not to provide something it had previously indicated it would provide.
- The decision to fund only 35 hours per week meant that P’s family would highly likely feel “profound disappointment and would legitimately expect an intelligible explanation for the decision”.
- In its October 2021 assessment, the assessor recorded that P had a “worrying” and “unhealthy” over-reliance on her mother, which needed to be tackled, and that her mother was feeling “overwhelmed” with the pressures of meeting her daughter’s needs.
Failure to comply with statutory guidance
The judge also ruled that the council had unlawfully failed to comply with the Care Act statutory guidance in producing P’s personal budget (ground 3) and her care and support plan (ground 4).
Section 78(1) of the Care Act requires councils to act under the general guidance of the government when exercising relevant functions, and lawyers for both P and Croydon agreed this meant that authorities must comply with the statutory guidance unless they can provide cogent reasons for departing from it. In this case, Croydon provided none, found the judge.
These breaches related to its failures to follow the principle of transparency in setting the personal budget and to involve P and her family in the development of the care and support plan.
As set out in paragraph 11.24 of the guidance, the transparency principle requires “that people fully understand how the personal budget has been calculated, both in the indicative amount and the final personal budget allocation”.
In relation to involvement, the judge referred to paragraph 10.49 of the guidance, which states that the “local authority must also involve the person the plan is intended for, the carer (if there is one), and/or any other person the adult requests to be involved”. It is worth noting here that this is not just a requirement of the guidance but of section 26(3) of the Care Act.
In this case, not only did the council not involve the family, but the family did not know about the care and support plan’s existence until after proceedings in this case had started.
Croydon conceded that it had not complied with the statutory guidance on transparency and involvement but defended itself on the grounds that doing so would not have made a substantial difference to the outcome.
The judge rejected this, stating: “I consider it highly likely that the proper involvement of the claimant and her family would have made a substantial difference to the outcome.”
He added that involvement “was required not only by general principles of fairness in public law, but also by the particular regime created by the 2014 Act”, which was to give people “the kind of autonomy that is associated with their being able to exercise control over day-to-day life.”
Response to complaints
The judge was also critical of Croydon’s initial response to P’s family’s complaint, which was to ask them to set out how the 35 hours would be insufficient to meet P’s needs. The judge said he did not agree that this should be required “in order for a complaint about the lawfulness of the decision to get off the ground”.
David Pievsky KC said that the “burden [or making this case] cannot sensibly be placed on the adult who needs care and support”. And while P had a father who was able to advocate for her, many people who needed care and support would not have access to this.
The judge said that it was for Croydon to make a judgment on the needs that it was under a duty to meet and communicate those intelligibly to P and her family.
Given the comprehensiveness of the judge’s dismissal of the legal arguments put forward by Croydon, it is perhaps surprising that the case was not settled before it came to court. If Croydon had provided an explanation of the panel decision to P and her family, then a major component of the complaint would have been removed.
Apologising for decisions that were not made transparently and without sufficient involvement of P and her family, and taking steps to address these issues, would have perhaps ensured that the decision-making process was “procedurally fair” and possibly “reasoned” – and thus a judicial review may well have been avoided.
However, if Croydon had maintained that it would only pay for 35 hours it is possible that P and her family would view this decision as not being “reasonable” and would seek to challenge it.
A response from Croydon council
A spokesperson for Croydon Council said: “We have accepted the findings of the judicial review and we are sorry we didn’t get it right for our resident the first time. We have carried out a new Care Act assessment and carer’s assessment to ensure the appropriate care package is provided. We have also reviewed and improved our processes to meet the needs of carers.”
Implications for CQC assessment of local authorities
Cases that are brought to judicial review provide valuable insights into how the Care Act is applied as well as establishing case law precedents.
With the advent the Care Quality Commission’s responsibility for assessing how local authorities discharge their duties under the Care Act 2014, such cases may well have implications for the way the CQC evaluates councils’ performance.
In the recently published draft version of the CQC assessment framework, one of the key measures is the extent to which “decisions and outcomes are transparent” in relation to assessing and meeting needs.
It would seem likely that some of the groups the regulator is expected to consult with in gathering evidence, such as advocacy or carers’ organisations, will want to raise cases where there have been concerns about transparency in their locality, and they may well use this judicial review as a benchmark.
The detail and significance of this and other judicial reviews concerning the Care Act are set out in the revised edition of Pete’s book, The Social Worker’s Guide to the Care Act 2014 (Critical Publishing), which is published this month.