OH v London Borough of Bexley (Rev 1) [2015] EWHC 1843 (Admin)

Case No CO/6003/2014[2015] EWHC 1843 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 26 June 2015
Before
MR ROGER TER HAAR QC
Between
O.HClaimantLONDON BOROUGH OF BEXLEYDefendant
Mr Lee Parkhill (instructed by John Ford Solicitors) for ClaimantMs Annabel Lee (instructed by The Legal Services Department, London Borough of Bexley) for DefendantHearing Hearing dates: 17 June 2015
JudgmentMR ROGER TER HAAR QC :
[1]At the beginning of the hearing of this case I was asked to make an order pursuant to CPR 39.2 directing that the name of the Claimant should be kept anonymous. I granted that application and directed that the Claimant should be referred to by his initials. In this Judgment the Claimant is referred to as O and his parents as Mr. and Mrs. H.[2]The application before the Court concerns the amount which the Defendant should pay in respect of community care services for the Claimant. For the reasons set out below, the application is successful. The Statutory Framework[3]Section 47 of the National Health Service and Community Care Act 1990 provides:(1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of services under section 117 of the Mental Health Act 1983 (in the case of a local authority in England) or of community care services (in the case of a local authority in Wales) may be in need of any such services, the authority – (a) shall carry out an assessment of his needs for those services; and (b) having regard to the result of that assessment, shall then decide whether his needs call for the provision by them of any such services.(2) ….(3) ….(4) The Secretary of State may give directions as to the manner in which an assessment under this section is to be carried out or the form it is to take but, subject to any such directions …. it shall be carried out in such manner and take such form as the local authority consider appropriate.[4]The Secretary of State has exercised the power conferred by Sub-Section 47(4) above and issued The Community Care Assessment Directions 2004 (“the 2004 Directions”), paragraph 2 of which provides:(1) In assessing the needs of a person under section 47(1) of the Act a local authority must comply with paragraphs (2) to (4).(2) The local authority must consult the person, consider whether the person has any carers and, where they think it appropriate any carers of that person, on the community care services which they are considering providing to him to meet his needs.(3) The local authority must take all reasonable steps to reach agreement with the person and, where they think it appropriate, any carers of that person, on the community care services which they are considering providing to him to meet his needs.(4) The local authority must provide information to the person and, where they think it appropriate, any carers of that person, about the amount of the payment (if any) which the person will be liable to make in respect of the community care services which they are considering providing to him.[5]Section 7 of the Local Authority Social Services Act 1970 provides: (1) Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of state.[6]In R v London Borough of Islington, Ex parte Rixon (QBD 15th March 1996) Sedley J. gave the following guidance as to the effect of Section 7 of the 1970 Act: What is the meaning and effect of the obligation to ‘act under the general guidance of the Secretary of State’? Clearly guidance is less than direction, and the word ‘general’ emphasises the non-prescriptive nature of what is envisaged. Mr. McCarthy, for the local authority, submits that such guidance is no more than one of the many factors to which the local authority is to have regard. Miss Richards submits that, in order to give effect to the words ‘shall … act’, a local authority must follow such guidance unless it has and can articulate a good reason to depart from it. In my judgment Parliament in enacting s 7(1) did not intend local authorities to whom ministerial guidance was given to be free, having considered it, to take it or leave it. Such a construction would put this kind of statutory guidance on a par with the many forms of non-statutory guidance issued by departments of state. While guidance and direction are semantically and legally different things, and while ‘guidance does not compel any particular decision’ (Laker Airways Ltd v Department of Trade [1977] QB 643, [1977] 2 All ER 182, page 714 of the former report per Roskill LJ), especially when prefaced by the word ‘general’, in my view Parliament by s 7(1) has required local authorities to follow the path charted by the Secretary of state’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.[7]In Rixon, as in this case, the Court was concerned with the issue of whether the local authority had complied with its duty under Section 47 of the 1990 Act. Later in his judgment Sedley J said this: It is Miss Richards’ first submission that in order to comply with the statutory duties, both personal and ‘target’, and to demonstrate that regard has been had to other relevant matters, the local authority must prepare a case plan which addresses the issues required by law and, where it deviates from the target, explains in legally acceptable terms why it is doing so. Mr. McCarthy responds by pointing out first of all that nowhere in the legislation is a care plan, by that or any other name, required. This Miss Richards accepts, but she contends, in my judgment rightly, that she is entitled to look to the care plan (which is commended in the statutory policy guidance) as the best available evidence of whether and how the local authority has addressed Jonathan’s case in the light of its statutory obligations. If, of course, further evidential material bears on this question, it too is admissible in relation to the challenge before the court. In other words, as I think Mr. McCarthy accepts, his submission that a care plan is nothing more than a clerical record of what has been decided and what is planned, far from marginalising the care plan, places it at the centre of any scrutiny of the local authority’s due discharge of its functions. As paragraph 3.24 of the policy guidance indicates, a care plan is the means by which the local authority assembles the relevant information and applies it to the statutory ends, and hence affords good evidence to any inquirer of the due discharge of its statutory duties. It cannot, however, be quashed as if it were a self-implementing document. The Policy Guidance[8]Mr. Parkhill, for the Claimant, referred extensively to the relevant Section 7 guidance published by the Department of Health, Prioritising need in the context of Putting People first: A whole system approach to Eligibility for social care. This records at paragraph 15 that it is issued under Section 7 of the 1970 Act. The following parts of that guidance are significant in respect of this case: (1) Paragraph 59:
“Councils should work with individuals to explore their presenting needs and identify what outcomes they would like to be able to achieve….” (2) Paragraph 68: “Given the necessity of prioritising needs for social care, fair and transparent allocation of available resources depends upon effective assessment. Decisions as to who gets local authority support should be made after an assessment, which should be centred on the person’s aspirations and support needs, involving both the person seeking support and their carers …..” (3) Paragraph 79: “From their very first contact with the council, an individual seeking support should be given as much information as possible about the assessment process. As part of the self-directed support process, assessment should be carried out as a collaborative process, in a way that is both transparent and understandable for the person seeking support so that they are able to: • Gain a better understanding of the purpose of assessment and its implications for their situation; • Actively participate in the process; • …. • Understand the basis on which decisions are reached.” (4) Paragraph 81: “Councils have a duty under the Community Care assessment Directions 2004 to consult the person being assessed (and their carers where appropriate); to take all reasonable steps to reach agreement with the person about the kind of support to be provided; and inform the person about the amount of the payment (if any) which they will be required to contribute …..” (5) Paragraph 119: “If an individual is eligible for help then the council should work with that individual to develop a plan for their care and support …..” (6) Paragraph 121: “Councils should agree a written record of the support plan with the individual which should include the following: • A note of the eligible needs identified during assessment; • Agreed outcomes and how support will be organised to meet those outcomes; • …. • A review date.” • A note of the eligible needs identified during assessment; • Agreed outcomes and how support will be organised to meet those outcomes; • …. • A review date.” (7) Paragraphs 141 to 143: “141. As individual needs are likely to change over time, councils should therefore ensure that arrangements are put in place for regular reviews of support plans. The projected timing of the review should be established with the service user, and their carer(s) where appropriate, at the outset….. “142. Like initial assessments, reviews should be focused on outcomes rather than services. In particular, reviews should: • Establish whether the outcomes identified in the support plan are being met through current arrangements; • Consider whether the needs and circumstances of the service user and/or their carer(s) have changed; • …. • Help determine the service user’s continued eligibility for support. “A written record of the results of these considerations should be kept and shared with the service user.” “143. Councils should record the results of reviews with reference to these objectives. For those service users who remain eligible councils should update the support plan…..” • Establish whether the outcomes identified in the support plan are being met through current arrangements; • Consider whether the needs and circumstances of the service user and/or their carer(s) have changed; • …. • Help determine the service user’s continued eligibility for support. (8) Paragraph 151: “For those service users who remain eligible, councils should update the support plan with the agreement of the service user and any other relevant parties …..”

The Facts

[9]In setting out the facts I keep well in mind that Judicial Review proceedings are not an appropriate forum within which to debate contested issues of fact.[10]O is a 23 year old young man with learning difficulties, communication difficulties, Down’s syndrome and general developmental delay. He was born on the 30th January 1992 and has been known to the Defendant since April 1996. In June 2009, he was “transferred” from the Children Services Department of the Defendant. Three days after he turned 18 years old, the Defendant completed a full assessment of his care needs.[11]From 2010 until the 17th July 2014, O attended Linkage College in Grimsby, a residential special school where he also resided full time. During the school holidays, O lived with his parents and sister. At home he was primarily cared for by his mother.[12]During the school holidays, O received 6 hours of support each week through an individual Budget: an Individual Budget is an arrangement whereby instead of the local authority itself providing physical care services, money is provided to the person requiring the services, or that person’s carer. The amount paid was £18.52 per week.[13]The Defendant’s Detailed Grounds of Defence in this case record at paragraph 5 that “on 6 June 2014, a final college review was concluded. During that meeting, a request was made by the Claimant for additional support during the school summer holidays.” This references a document headed “Adults Support Plan”. I refer to this as “The Support Plan”. In that plan there is a page headed “support plan” with three columns, “Needs/Risks”, “Outcomes”, and “Services”. One of the “needs” is “needs prompting with practical issues, i.e. making GP appointments, shopping, shaving, laundry”, for which the services proposed are “O. receives four days of day care through Independent Budget.” Against the needs entry “needs prompting with social and leisure needs”, the “outcomes” column records “4 days of day care through IB is in place” and in the “services column “This needs are met through Independent Budget”. On the same page under a heading “Care planning (Summary)” is the entry “O. has support of 4 days through IB”. It is to be noted that although the document provides spaces for signatures by the “service user” and carer(s), there are no signatures on the form. It is also to be noted that there is a box marked “Agreement of Care Plan (please tick)” which contains no tick.[14]The Social Worker in charge of O’s case, Mr. Samwel Nyabuya, says of the 6th June assessment and what happened after that assessment:
“A final college review was concluded on 6 June 2014 …. O was leaving Linkage College in July 2014. I attended at the review, together with O, his parents and the tutors from Linkage College. After three years at college, the review indicated that OH had made tremendous improvement and he was ready to use those skills in the community. “During the 6 June 2014 review meeting O’s parents raised concerns regarding the 6 hours of support being provided per week during the school holiday. They stated that the current care package would not sustain O’s independence once he moves back to Bexley during the summer school holiday. We therefore agreed with O’s parents to meet them on 10 June 2014 so that we could discuss the current care support and how to progress with the proposed supported living arrangement. “Unfortunately it was not possible to meet Mr. and Mrs. H. on 10 June 2014 as agreed. Instead we met on 15 July 2014 where we discussed the increase of the care support. I was aware that O’s parents had met with my line managers, Ms. Rohleder and Ms. Solvey the week before on 8 July 2014. O was not present at that meeting. We confirmed what had been agreed on the 8th, namely that O would receive four days of support per week. This took into account that O’s mother was working four days a week.”
[15]It is the Defendant’s case that in The Support Plan the reference to “4 days of day care” is a reference to a payment of an amount to allow O to attend a day care centre 4 days a week.[16]In the papers before me, there are lengthy minutes of the meeting of the 6th June 2014. There is no mention in those minutes of O going to a day care centre. There is this passage, however:
“Mrs. H. asked about support for the summer holidays as O has been assessed as requiring 6 hours a week and this is not adequate. Samwell said if this was not adequate he did not see any reason why it could not be increased. O will be re-assessed so a support package can be arranged.”
[17]There is a note of the meeting of the 15th July 2014. This includes the following:
“Interim Support “Mrs. H. asked what support is being provided from Monday, 21st August 2014? Samwel [the social worker in charge of the case] asked if the current care package has any money left, Mrs. H. said yes. O receives 6 hours per week. Mrs. H. works 4 days and therefore the support needed would be 24 hours over the 4 days. “O will receive hours in lieu of 4 days day care. The hours in lieu of day care do not equal day the centre hours [sic: this must mean “do not equal the day centre hours]. Commissioning to discuss the breakdown/money to how many hours, with Mr. and Mrs. H. “Mrs. H. asked why commissioning were not invited to this meeting? “Mrs. H. said that she was told by Karen Rohleder and Bernice Solvey that a PA would be starting next week. Samwel explained that getting a PA takes time and that interim support will need to be put in place first. O will need to meet with any potential PA’s to see if everyone can work together and that it is O’s choice as to which PA he chooses. “Mr. H. asked when the interim support would be put in place? Samwel informed Mrs. H. that he will need to speak to commissioning first. “Mrs. H. asked how many hours can she use and will all the hours be reimbursed? What does 4 days mean in hours? Samwel again stated that he will liaise with commissioning to contact to explain…..”
[18]What was discussed at the meeting was also recorded in part in an email sent by Mr. Nyabuya to Mrs. H. later that day:
“Thanks for attending the meeting. “As agreed the minutes of the meeting will be sent to you once completed. And below is the summary of the issues that we discussed. “Interim Support “The current support is 6 hours a week which is paid through independent Budget. “4 days of day care through Independent Budget. “Commissioning to give you a call regarding the breakdown of hours. “To meet with the Reablement team and discuss the PA options.”
[19]The matter was left that Mr. Nyabuya would contact the commissioning team. This he did, and on the following day sent an email as follows:
“I am writing to confirm that Commissioning have agreed additional 18 hours which makes it a total of 24 hours a week (guarding hours while you are at work). “This will be an interim support while waiting for the Reablement Team to conclude their assessment.”
[20]In his witness statement Mr. Nyabuya says this:
“O’s parents believed that the previous reviews, and the final review from linkage College, were not a true reflection of O’s assessed needs. The family requested an increased level of care support to support O while at home during the summer period. The Defendant offered a care package of 24 hours a week as an interim measure to facilitate a reablement assessment to be carried out. The 24 hours a week was the level of support that Mrs. H. had requested and we were able to agree that pending the reablement assessment…..”
[21]On the 6th August 2014, a letter was written by a representative of the Defendant described as a “senior broker” to Mrs. H. on behalf of O:
“Please find enclosed a copy of your completed Support Plan. “You are taking the Individual Budget for 19 hours of Support @ £12.35 per hour = £234.65 x 7 weeks = £1642.55 (Budget is from 04/08/2014-21/09/2014). “You have chosen to use essential Social Care as your provider and understand that you will have to top up Bexley’s Budget to have them. “Bexley will Audit the Bank Account in 3 months you will need to keep all invoices from your provider along with Bank statements, no cash transactions allowed. “I will contact you within three months for your first review.”
[22]As exhibited to Mr. Nyabuya’s witness statement, the letter has within a document headed “Adult Social Care Support Plan”. This is not The Support Plan to which I have referred to at paragraph 13 above. It was suggested on behalf of the Defendant that this letter also enclosed that support plan, however that is not what Mr. Nyabuya’s witness statement says, nor how he put his exhibit together. It is also suggested that “the Claimant’s mother signed a document acknowledging receipt of the support plan”, referring to the Adult Social Care Support Plan to which I have referred in the first sentence of this paragraph, but that is not what that document says.[23]Accordingly, acting on the evidence before me, I proceed on the basis that the letter did not enclose The Support Plan referred to in paragraph 13 above, and there is no suggestion or evidence that it was provided to O or his parents at any other time.[24]On the 12th August there was a meeting between O, his parents and two representatives of the Defendant to discuss the reablement process. It was agreed that there would be a start date for the Reablement process of the 15th September.[25]On the 3rd September solicitors instructed on behalf of O wrote to the Defendant pressing as to the position in respect of provision of supported accommodation. They received a response on the 10th September from the Defendant’s Legal Services department which included the following:
“Our clients inform that O currently receives 24 hours of support per week via an Independent Budget. This is designed as an interim support measure until they identify whether he is able to transfer his skills that he has learned over the past three years at Linkage College into his everyday life. “The final report received from his college indicates that OH is very independent, able to manage his finances, can access the community independently and that he is able to work/stay on task unsupervised. However, we are instructed that this report has been disputed by the family who state that it is not a true reflection. Our clients have therefore commissioned Bexley Council’s Reablement team to begin working with O.”
[26]A Chronology exhibited by Mr. Nyabuya sets out what then happened in respect of the proposed reablement meeting on the 15th September. On the 8th September Mrs. H. emailed as follows:
“I am afraid the reablement team will not be going ahead as planned as there has been some almighty cock-up within Bexley Council regarding O’s college placement. We were informed on Friday afternoon that they had no idea he was intending on going to college. The times that were planned are inappropriate to his schedule so until he starts college this cannot take place ….”
The Defendant responded on the 10th September:
“Thank you for your response. I have spoken to Samwel and Karen regarding holding off the Reablement programme. We felt that it should go ahead as the programme focuses on developing O’s skills and establishing his routine within his home environment. “I appreciate that his college course has not yet been confirmed therefore we could amend the Reablement package in accordance to his current routine.”
Mrs. H answered the same day: “In response to your email dated 10th September. I will forward your email on to OH’s Solicitor and wait a reply.[27]On the following day, the 11th, Mrs. H. sent an email saying “I will go ahead with the reablement, we need to discuss when they will be coming in. It will have to be in the afternoons when I am at home.” Unfortunately, this email found its way into a junk email box and was not read until the 17th September by which time the 15th September had come and gone.[28]The letter of the 6th August 2014, to which I have referred at paragraph 20 above, had specified that the payments would be for a period of 7 weeks from the 4th August 2014 to the 21st September 2014. Mr. Nyabuya says that:
“On 21 September 2014 the interim care package ended and the Defendant reverted back to the previously agreed care level of 4 days of day care through an independent budget as recorded in the updated support plan as it appears now…”
The reference to “the updated support plan” is a reference to The Support Plan which I have referred to at paragraph 13 above. I return below to the question whether there was a “previously agreed care level”.[29]Up to this point, O had been receiving £296.40 per week, representing 24 hours per week of community care.[30]At this stage there were a number of matters running in parallel, but connected:(1) O was pressing to be provided with social housing;(2) There was doubt as to whether O would go to North Kent College (in the event he did not go);(3) The reablement assessment process had faltered.[31]On the 26th September 2014 there was an internal email within the Defendant, but copied to Mrs. H.:
“As you are aware, Mrs. H. agreed to go ahead with the Reablement after it was initially put on hold at her request, in order for her to deal with issues relating to O’s education course. I therefore met with O, Mrs. H and staff from Bluebird care agency on wed 24th Sep to agree the careplan and confirm a start date. At the meeting Mrs. H. informed me that she had received a letter from Bexley council confirming funding for the course at North West Kent but not funding for the full cost of the transport. She added that she was intending to appeal the decision regarding transport therefore O couldn’t start college until the matter is resolved. “As O’s support hours were stopped on the 21st Sep, Mrs. H reported that without the non-Reablement support hours he would have no other regular activities/clubs/hobbies to fill his day. She added that O is only left home alone for approximately 30mins at a time therefore the Reablement programme (which consists of 4x am visits and 1x teatime visit) would leave a gap that needs to be filled with other things for O to do. “I therefore suggested to hold off the programme once again until I discuss the matter with you as Samwel is on leave.”
[32]On the 1st October 2014 Mrs. H. sent an email to the Defendant as follows:
“As College and transport have not been sorted, I am requesting again about more support?? I would like more funds to be transferred into the account so I can pay the provider for this month coming. Even though the support was only up to 21st September, I have continued with support because college and transport have not yet been sorted yet (re my email yesterday). “I would like clarification from yourself that O will continue to receive support, continue using the balance left over and to have more funds paid into the account.” 33. That same day, Mr. Nyabuya replied “…. O’s support has been validated to two days of day care through IB”
. The following day, Mrs. H. e mailed:
“…. Regarding issues around support, O has no college at the moment so two days a week of day care is insufficient to the support O is currently receiving from Essential Care. I again request that further funds are paid into O’s account.”
These exchanges led to a meeting being arranged to discuss the various matters which remained to be resolved.[33]On the 10th October 2014 there was a meeting between Mr. and Mrs. H. and representatives of the Defendant. The minutes are in places a bit garbled:
“Current Situation “Mrs. H. updated the meeting that O is bored and sleeps until 1pm as he has nothing to occupy him throughout the day. OH had previously started working with Age UK, however gave this up as got bored with cleaning tables. O was under the impression he would be carrying out admin work. “O does receive help from a support worker, consisting of two different workers from the Essential Care Agency. O has a good relationship with them, and goes on outings i.e. bowling. …. “Finances “Mrs. H. informed the meeting that O receives the lower DLA [Disability Living Allowance] rate. Direct payment was paid as a lump sum consisting of £2148.98, this has now finished. Mrs. H. stated that a letter was received from Bexley on the 1st August regarding finances, however payment was not processed until the 5th September 2014, and Mrs. H. has been [chasing] the Brokerage Team for this money which has since been paid. “Mrs H. explained to the meeting that £74 which was being paid for the original six hours towards care should have stopped. Mrs. H. confirmed that Bexley pays £12.35 per hour towards support worker however the service charges £13.80 per. This is topped up by the family.” …. “Reablement Services “Karen explained to the meeting that Bexley offer a reablement service. This is to identify the needs of a client looking at what tasks a client can carry out, rather than what a client cannot do. It determines what level of support a client may need and used as a basis to move forward. This can be carried out in clients own home. Mr. and Mrs. H. were in agreement of this service, however concerns regarding hours when Mrs. H. at work – Karen to make further investigations. “Services offered • College Placement has been recommended at Bexley College – Similar course to the one offered at North West Kent college, however Mrs. H. declined as the course was not the same and feels O should have choice. • Day Centre Placement – Mrs H. stated she did not feel this was not suitable for O [the second “not” must, in my judgment, be an error] Action plan “ • Check finances with Brokerage Team regarding continuation in increased hours and when payment will be made to account – Karen to send confirmation email to Mrs H. after today’s meeting • …. • Reablement Package – Karen to liaise with Emma Parker regarding reablement package/hours and how soon this could start, supporting hours when Mrs. H. is at work – Confirmation letter to be sent to Mr. and Mrs. H…..” • College Placement has been recommended at Bexley College – Similar course to the one offered at North West Kent college, however Mrs. H. declined as the course was not the same and feels O should have choice. • Day Centre Placement – Mrs H. stated she did not feel this was not suitable for O [the second “not” must, in my judgment, be an error] • Check finances with Brokerage Team regarding continuation in increased hours and when payment will be made to account – Karen to send confirmation email to Mrs H. after today’s meeting • …. • Reablement Package – Karen to liaise with Emma Parker regarding reablement package/hours and how soon this could start, supporting hours when Mrs. H. is at work – Confirmation letter to be sent to Mr. and Mrs. H…..”
[34]Following the 10th October meeting there were again a number of email exchanges culminating in the following: (1) 23rd October: Mrs. Parker of the Defendant to Mrs. H.:
“With reference to your email to Samwel below, can we now arrange a meeting to agree the Reablement plan and start date?” (2) 26th October: Mrs. H. to Ms. Rohleder of the Defendant: “The action plan that was drawn up by yourselves following on from the meeting on the 10th October, we are still awaiting any form of response from you regarding progress. Notably when new funds will be paid into O’s account and how reablement will fit into the support package. “We have continued to use Essential Care as you stated quite clearly that the support package will continue, as above we need additional funds paid ASAP. “Please communicate clearly with your colleagues Mr. Nyabuya and Emma Parker to stop emailing us until you complete the tasks assigned to yourself in your action plan. Any updates should come directly from you to stop all the confusion this is causing. “Please respond by close of business Tuesday 28th October as we need funds to plan OH’s support schedule for next week.” (3) 27th October 2014: Mr. Nyabuya to Mr. and Mrs. H: “Karen Rohleder is on leave until Wednesday 30th October 2014. “I can also confirm that O IB of 4 days of day care is being progressed and the payment will be backdated.” (4) 27th October 2014: Mrs. H. to Mr. Nyabuya: “Karen clearly stated the current care package would continue, this is 24 hours per week approx. £296.00. In your email you have stated O’s Individual Budget is 4 days of day care are we talking the same amount of money?” (5) 28th October 2014: Mr. Nyabuya to Mr. and Mrs. H: “The 24 hours per week was a one off package that was agreed until the 21st of September 2014. The current agreed and ongoing package is 4 days of care through Independent Budget. “The breakdown is as follows: “£28.81 x 4 days = £115.24 per week and this brings to the total of £460.96 per month. “This payment will be back dated as from the 22nd September 2014; “I have also been informed by Brokerage that there will be a delay in processing the funds due to the installation of a new IT programme.”
[35]By this stage the Claimant’s solicitors were now retained to deal with the community care issues. On the 14th November 2014, the Legal Services Department of the Defendant wrote to the Claimant’s solicitors saying, amongst other things:
“The care package provision reconsidered in October 2014, and currently being provided to O, is 4 days of day care provided via an Individual Budget. Service users can choose to access day care centres in Bexley, or they can opt for an individual budget which is what has been agreed by O and his family. This provision has been backdated to 22nd September 2014.”
[36]This led to a Pre-Action Protocol Letter dated the 19th November 2014, but this did not lead to any change in the Defendant’s position The Judicial Review Application[37]On the 22nd December 2014, the Claimant commenced Judicial review proceedings.[38]The Grounds relied upon are as follows:
“Ground 1 – failure to review O and supply a revised support plan, contrary to the statutory guidance. “The Defendant clearly accepts that OH is still eligible for community care services since it has reduced, rather than withdrawn, his care budget. In the case of individuals whose needs (in the opinion of a local authority) change, paragraph 143 of the statutory guidance requires an amended support plan to be produced. No such plan has been produced and provided to O. The Defendant has unlawfully failed to comply with the statutory guidance. “Ground 2 – failure to give reasons for the reduction in care, contrary to the statutory guidance. “Paragraph 143 of the statutory guidance requires that where, on review, needs are found to no longer be eligible, reasons should be given. To the extent that the Defendant has now determined that some of O’s needs are no longer eligible for a service, it should have given reasons for that decision. It has not done so, contrary to the statutory guidance. “Furthermore, there is no evidence of any ‘review’ process at all, which could have led to a decision to alter his support plan. Defendant had said that it hoped to see what the 24 hours per week could do to promote O’s independence ….. where the Defendant envisaged undertaking a re-assessment of O …. The Defendant could only ‘identify’ if there has been a change in O’s needs by undertaking an assessment. It has not done so. There should therefore be no change in his support provision. “Ground 3 – failure to take all reasonable steps to reach agreement as to O’s care, contrary to the 2004 Directions. “The Defendant has completely failed to attempt to reach agreement, with O and his parents, as to the care O will receive. The Defendant has unilaterally reduced O’s care with no adequate consultation. The Defendant has not taken ‘all reasonable steps’ to reach agreement as to O’s care provision and has therefore acted unlawfully, contrary to the 2004 Directions.”
[39]The principal relief sought is:
“a. An order quashing the Defendant’s decision (taken on a date unknown but communicated in an e mail dated 27 October 2014) to reduce his care provision below 24 hours per week; “b. A mandatory order requiring the Defendant to re-assess his community care needs; “c. A mandatory order requiring the Defendant to maintain the provision of 24 hours of care each week to the Claimant pending the completion of a further assessment of his community care needs.”
[40]By order dated the 22nd January 2015, Mr. Nicholas Lavender Q.C. granted permission to apply for judicial review. The Defendant’s Case[41]As set out in paragraph 3 (b) of the Defendant’s Response to Application for Urgent Relief and Summary Grounds of Defence, the Defendant’s case is that:
“The claim is unarguable: The 24 hours per week care package was provided as an interim care package. After the interim care package ended on 21 September 2014, the Defendant provided a care package of 4 days of day care per week to meet the Claimant’s needs as set out in his care plan. This care package was implemented in order that the Claimant’s mother could work four days per week. The Claimant chose to receive this through an Individual Budget.”
[42]In paragraph 15 of the Detailed Grounds of Defence, the case was put as follows:
“a. The Claimant was appropriately assessed and reviewed at all times, and a revised support plan was provided to the Claimant’s parents on or around 6 August 2014. “b. Far from reducing the Claimant’s care package, the Defendant increased the Claimant’s care package from 6 hours support per week (equating to £18.52) to 4 days of day care per week (equating to £115.00). An interim care package of 24 hours per week was agreed and implemented from 4 August 2014 to 21 September 2014 for the purposes of facilitating a re-ablement assessment. “c. The Defendant took reasonable steps to reach agreement as to O’s care including by way of regular face-to-face meetings, emails and telephone calls.”
[43]In Ms. Lee’s Skeleton Argument the case is put at paragraph 2 as follows:
“The Defendant contends that the Claimant’s claim is based on a mischaracterisation of the facts. The Claimant’s baseline care package was 4 days of day care per week (£115) throughout the relevant period. For a limited time (from 4 August 2014 to 21 September 2014), the Defendant agreed to provide additional support equating to 24 hours of care per week (£296) on an interim basis only. Thereafter, the interim package of support ended and the Claimant reverted to his baseline care package of 4 days of day care per week (£115).”
The position up to the 6th August 2014[44]In my judgment, it is helpful to consider the position before August 2014, between the 6th August and 21st September 2014, and after the 21st September 2014.[45]On the Defendant’s case as set out in Ms. Lee’s Skeleton Argument, and as explained to me orally, a baseline care package was agreed of 4 days day care per week.[46]It is very far from easy to sift out what was actually agreed: in order to piece together the story, I have had to draw details from various documents in various parts of the trial bundle, in a manner which is closer to a factual investigation in conventional court proceedings rather than what is expected in judicial review proceedings.[47]This is not a criticism of the Claimant or his parents or their advisers. On the contrary, it arises out of the failure of the Defendant to carry out its duties in a way which was transparent and understandable, as required by paragraph 79 of the Policy Guidance (see paragraph 8(3) above).[48]As I understand it, the suggestion is that the “baseline care package” was agreed at the assessment meeting on the 6th June 2014. However, not only does the note of that meeting not mention any such agreement, the passage which I have set out at paragraph 16 above powerfully suggests that nothing was then agreed. It is also to be noted that The Support Package does not contain any signatures on behalf of O confirming agreement. The copy in the bundle before me is a copy of an electronic document, so understandably does not have signatures upon it: however the clear implication is that the draftsman of the form intended signatures to be placed upon a physical copy of it, or agreement to be evidenced in some other way. Moreover, it is clear from the fact that the meeting of the 15th July 2014 took place that there was not agreement at that stage.[49]There is nothing in the contemporaneous documentation (note of the meeting and emails) which suggests that at that stage a baseline care package was agreed.[50]If it had been agreed, it is remarkable that there is absolutely nothing to suggest that the Defendant assessed the advantages and disadvantages of that baseline care package.[51]Accordingly, I reject the suggestion that there was a baseline care package agreed at that stage (i.e. either on the 6th June or the 15th July). In further support of that view, it is relevant that it was not referred to in the letter of the 6th August (see paragraph 21 above), the letter of the 10th September (see paragraph 25 above) or the email of the 26th September (referred to at paragraph 31 above), nor does it appear to have come to light in the meeting on the 10th October (see paragraph 33 above).[52]On the other hand, it seems to me clear that the email of the 16th July 2014 (see paragraph 19 above), said in terms that there would be interim support of 24 hours per week. It was to be interim until the Reablement Team had concluded their assessment.[53]It also appears quite clear that as at the middle of July 2014 it was expected by both the Defendant and the Claimant’s parents that O would go to college in the Autumn, and that the Reablement Assessment would take place in September. Thus both parties expected that the interim care package would need to be reconsidered in about September. The position between the 6th August and 21st September 2014[54]I have referred to the letter of the 6th August at paragraph 21 above. If this was intended to change the understanding between the parties from that agreed and/or understood by the 16th July 2014 it was badly phrased to do so. Whilst there is a reference to the period up to the 21st September, the relevance of that period is not explained, it appears to be merely an accounting exercise, it is not stated to replace what Mr. Nyabuya had said in his email of the 16th August, and is rendered confusing by the reference to a review in three months’ time. The position after the 21st September 2014[55]After the 21st September, the payments came to a complete halt, as I understand the position. The position did not revert to a “baseline care package” but reverted to no care package at all.[56]By the 21st September, the Reablement assessment had not been carried out for reasons which were at least the fault of the Defendant in failing to notice that an email from Mrs. H. had been received (see paragraph 27 above).[57]On the evidence before me, no further assessment was carried out then or at any time between then and now. There has never been any explanation as to why if it was appropriate to decide in mid July to allow 24 hours community care per week, it had ceased to be appropriate to do so after the 21st September. In my view, there is no evidence at all of any assessment at any stage of whether the day care solution was appropriate. There are certainly indications in the papers that it is not a satisfactory solution, but I reach no conclusion as to that. Conclusion: are the Grounds for Judicial Review made out?[58]Subject to the question of whether the Claimant has an adequate alternative remedy, I turn now to consider each of the Grounds for Judicial Review which I have set out in paragraph 38 above.[59]Ground 1 - failure to review O and supply a revised support plan: I am satisfied that this ground is made out. There is no evidence whatsoever of any assessment or any appropriate support plan to deal with O’s care needs after September 2014.[60]Ground 2 – failure to give reasons for reduction in care: similarly this ground is made out. Even if the evidence supported the existence of an agreed baseline care package, the situation cried out for an explanation by the Defendant as to its approach when the reablement assessment did not take place and O did not go to College.[61]Ground 3 – failure to take all reasonable steps to reach agreement as to O’s care: given the lack of transparency and confusion to which I have referred above, there is substance in this complaint, but it does not seem to me to be the real point of concern. The real point of concern, as it seems to me, is that the Defendant never came forward with any assessment of what would be an appropriate care package in the circumstances prevailing after the 21st September 2014. Adequate Alternative Remedy?[62]It has been somewhat faintly argued before me that an adequate alternative remedy would be a complaint to the chair of the Care Audit panel or by letter to the Defendant.[63]There has been nothing in the Defendant’s defence of these proceedings that suggests to me that complaint to the Defendant would have been any remedy whatsoever. A significant difficulty in the way of any alternative remedy would have been the Defendant’s insistence upon a construct of the facts which is unsupported by its own evidence. This is not a case of conflicting evidence between the parties, but rather a rewriting of history which analysis does not support. Appropriate Relief[64]It is not for me to assess what would be the appropriate community care regime for O now or at any time since September 2014. Accordingly I decline to order the relief claimed at paragraph c of the Statement of Fact and Grounds (see paragraph 39 above), as that paragraph appear to me to be telling the Defendant what the only right answer could be and could have been (although I strongly suspect that on a proper analysis the 24 hours per week will prove to be the correct solution).[65]I have some sympathy with the way in which paragraph a is framed, because it is difficult to point to any decision actually made, other than to infer that somebody on behalf of the Defendant must have made that decision at some time before the email set out at paragraph 34(4) above was written. I will grant Judicial Review in the terms of paragraph a of the relief claimed by the Claimant. I also grant relief in the terms of paragraph b, as that seems to me to follow from the decisions I have made above.