Cutting personal budgets for care

Sunday 30 July 2017

Davey, R (On the Application Of) v Oxfordshire County Council [2017] EWHC 354 (Admin) 27 February 2017. The claimant has quadriplegic cerebral palsy and severe visual impairment. He is dependent on a wheelchair, needed assistance with all his personal care needs, and suffers from depression and anxiety. He was cared for by his family and a team of visiting personal assistants, two of whom had been with him for 18 years.

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Davey, R (On the Application Of) v Oxfordshire County Council [2017] EWHC 354 (Admin) 27 February 2017

The claimant applied for judicial review of the defendant's decision to reduce his personal budget and revise his care and support plan pursuant to the Care Act 2014.

The claimant has quadriplegic cerebral palsy and severe visual impairment. He is dependent on a wheelchair, needed assistance with all his personal care needs, and suffers from depression and anxiety. He was cared for by his family and a team of visiting personal assistants, two of whom had been with him for 18 years.

In 2015, the defendant reduced his personal budget for care from £1651 per week to £950 per week following a change in funding arrangements and an updated needs assessment. The defendant said he could spend more time without a personal assistant being present and could reduce the amount he paid them. The claimant claimed the decision was a breach of the defendant's obligations under the Care Act 2014 and/or was Wednesbury unreasonable. He claimed that the defendant's decision posed two risks to his wellbeing, namely his anxiety from having to spend unwanted time alone and the risk of losing his established care team.

The court dismissed the application for judicial review and held the following:

(1) The defendant's approach of seeking to develop independence and reducing anxiety by providing for the claimant to spend more time alone was not unlawful. This was a legitimate "need". The view that one way to reduce anxiety and to develop independence was to expose the claimant to increased periods of time spent alone was the professional judgment and one which was not irrational. Indeed it was a successful approach borne out by subsequent events.

(2) The defendant had considered both the risk to the claimant’s psychological wellbeing arising from having to spend more time alone and the effect of spending periods of time alone upon his ability to engage in social activities. It had taken all reasonable steps to reach agreement with the claimant as to how it should meet his needs.

(3) The defendant had had regard to the need to ensure that decisions about the claimant were made having regard to all his individual circumstances; it had acted in compliance with its duty under s.1(3)(d) of the Care Act 2014. Furthermore, there was no sufficient evidence that, at the time of the decisions, or indeed since, the changes in the pay and conditions of the personal assistants had resulted or would result in the break-up of the existing team of personal assistants, or indeed any one or more members of the team of personal assistants leaving. The defendant, did, in general terms, take account of the importance of the existing team of carers.

(4) Under paragraph 11.25 of "Care and Support Statutory Guidance", the adequacy of the rates of pay for personal assistants was a relevant consideration which the defendant was required to take into account in setting the personal budget. Although the defendant's position had not been consistent, the claimant's case was not established on the facts. An experienced social worker was confident that the proposed rates were sufficient to recruit carers and the defendant would consider increasing the personal budget when the care plan was reviewed if it proved difficult to find sufficient carers.

(5) The court also held that the UN Convention of Rights of Disabled Persons did not impose additional obligations on the defendant and in any event there was no breach.

For a further detailed discussion and critical analysis of the decision see commentary by K. Ashton ‘Care Act 2014: cuts to personal budgets’ Elderly Law Journal 2017 vol. 7 p 165

The full judgment is available: Davey, R (On the Application Of) v Oxfordshire County Council [2017] EWHC 354 (Admin) 27 February 2017

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