Our community care specialist, Jenny Mansell explores a High Court case (decided last year) that reminds us why local authorities need to provide written, reasoned decisions in relation to a service-user’s request for support under the Care Act 2014.

In the case of R on the application of P (by her litigation friend SP), v. London Borough of Croydon [2022] EWHC 2886 (Admin), the High Court considered whether a decision by Croydon Council to fund a certain level of support was lawful.  The case involved a 27-year-old woman, P who has a diagnosis of Autistic Spectrum Disorder, absence epilepsy, learning difficulties and a number of other significant disorders and anxieties. The case was brought by her father, SP who was acting as her litigation friend.

It was agreed between the parties that P had eligible needs for care and support pursuant to the Care Act 2014 and that Croydon Council had the responsibility for meeting those needs. What was in dispute was the level of support that was required to meet her needs.

In October 2021 Croydon Council had carried out an assessment of P’s needs which identified that P needed support with maintaining personal hygiene, wearing appropriate clothes, managing her toilet needs, eating and drinking properly, being aware of hazards, developing social relationships, and accessing work, training, education or volunteering. The assessment concluded with a section that said that P needed:

i) “24 hour support“, for “personal care, eating and drinking, and home and living“);

ii) “up to 7 hours support, 7 days a week“, to assist with accessing and engaging in work, training, education or volunteering;

iii) “up to 7 hours support, 7 days a week“, to assist her to maintain relationships and engage in normal everyday activities;

iv) An “indicative” support budget of £1,200 per week.

Her father raised two issues with the local authority. Firstly, the local authority had agreed to review their support payments to P from August 2019 as they had agreed to increase the payments from 30 hours a week to 35 hours a week. Secondly, in light of the findings of the assessment, he asked the local authority to produce a care and support plan which also included 12 hours of overnight respite support a week. His understanding was that those 12 hours of overnight support, when added to the other hours of support specified in the assessment, made up the overall budget of £1,200 per week, representing a total of 96 support hours at an hourly rate of £12.50 per hour.

The local authority disputed this. They said that the indicative budget was not legally binding and that any increase in the support package would need to be reviewed or reassessed. In fact, the local authority had produced a care and support plan which set out that P would receive 35 hours of care and support a week, but this had not been provided to P or her family.

P brought a claim on the basis that 1. the local authority had failed to meet P’s needs as set out in the assessment pursuant to section 18 Care Act 2014; 2. The local authority had failed to undertake a carer’s assessment of P’s parents; 3. The local authority had failed to comply with the Statutory Code of Guidance when calculating P’s personal budget; and; 4. The local authority had failed to comply with the Statutory Code of Guidance when producing the care and support plan.

P was successful in respect of points 1, 3 and 4 (point 2 had become academic).

On Ground 1, the Court concluded that the local authority’s decision to provide P with 35 hours of support per week from February 2022 was unlawful. It was agreed by all that the local authority did not have to adopt the indicative budget but that “the Defendant’s reason for not adopting the indicative budget, now supported by the (late) witness statement of Mr Sisman, was that it had concluded that the author of the October 2021 assessment had made an error in forgetting to take into account the level of support being provided by the Claimant’s family. What was then required, applying basic principles of public law to the decision that still needed to be made under s.18(7) of the 2014 Act, was a reasoned, procedurally fair, and reasonable decision from the Defendant about how – if it was not going to meet the Claimant’s needs by adopting the indicative budget and the associated recommendations contained in its own October 2021 assessment – it was instead intending to meet the Claimants’ needs, taking due account of the care which her family were willing and able to provide to her.”

In relation to grounds 3 and 4, the Court found that “Although the Defendant, entirely properly, involved the Claimant and her family in its October 2021 assessment process, it went on (having rejected the key recommendations of that process) to determine the Claimant’s current personal budget and her CSP without any further substantial involvement of the Claimant or her family. Indeed, as I have mentioned, they did not know about the CSP’s existence until after proceedings were commenced. Mr Swirsky conceded, in my judgment correctly, that this was not consistent with the requirements of the Statutory Code, and that under Grounds 3 and 4 respectively the personal budget and CSP were (prima facie) unlawful for this further reason.”

Croydon tried to argue that even if they had complied with the statutory guidance and involved P and her family in the care and support plan and personal budget, it was highly likely that the outcome would not have been substantially different because the parties were too far apart to reach an agreed solution and so no order should be made. The Court concluded that this was not the case, citing that an agreed solution was not the only way in which the outcome could have been substantially different and pointing out that the local authority had agreed to undertake a reassessment of P’s needs which should in itself suggest that there was a possibility for the outcome to be substantially different.

At a time where local authorities’ budgets are under a lot of strain and consequently difficult decisions are being made about the level of support that people are provided with to meet their needs, this is an important reminder of the importance of the need to involve the person and their family members in the decision-making and provide detailed written reasons. If local authorities fail to do this, then the decision will be unlawful and you will be able to challenge it and it is worth seeking legal advice about this. The Community Care team at TV Edwards can represent you in relation to a community care issue.  Please contact us on 020 3440 8000 or enquiries@tvedwards.com to make an enquiry.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.