Failure to apply the ‘well-being principle’ in the Care Act 2014

Tuesday 1 August 2017

JF, R (on the application of JF acting through his mother and litigation friend KF) v The London Borough of Merton (Rev 1) [2017] EWHC 1519 (Admin), 30 June 2017

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JF, R (on the application of JF acting through his mother and litigation friend KF) v The London Borough of Merton (Rev 1) [2017] EWHC 1519 (Admin), 30 June 2017

The claimant is a young adult male who lived in a residential college for many years. The claimant is non-verbal, highly anxious and this is exacerbated by any change to his routine or environment. He requires 1:1 supervision at all times and 2:1 when in the community. For over 15 years he has received support from a multidisciplinary team that includes speech and language therapy, physiotherapy, psychiatric input and other therapeutic and support provision.

The defendant decided he could be moved to an alternative setting and based its decision on a pre-admission assessment undertaken by the provider of the alternative setting rather than a lawful and detailed assessment. The defendant accepted that its decision was in part based on availability of resources.

The claim was successful on the basis of the defendant’s failure to apply the ‘well-being principle’ in section 1 of the Care Act 2014. The court held that an assessment will be unlawful if it (paragraph 47):

(1) fails to assess the impact needs for care and support upon the factors of wellbeing listed in section 1(2) of the Act;

(2) fails to assess the outcomes that subject wishes to achieve in day-to-day life, and whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes;

(3) fails to have regard to the matters specified in regulation 3(2) of the Care and Support (Assessment) Regulations, (their wishes and preferences; the outcomes they seek; the severity and overall extent of their needs).

The court also held no reasonable local authority would terminate the placement of someone with the claimant's complex needs without having conducted a lawful assessment of those needs and without having lawfully decided that suitable alternative accommodation was available that would enable them to meet his needs.

A difficult aspect of the judgment concerns the question of whether the defendant was required, in its assessment, to decide how the transfer from claimant’s current setting to the proposed setting would be managed. The court held that an assessment under section 9 of the Care Act 2014, is not required to deal with transitions of this kind (‘statement of static current needs’ (see paragraph 56)). Nevertheless the Care and Support Plan would have to deal with this issue, however this appears to be a wrong interpretation as to how the Care Act 2014 is to operate concerning transitions in care provision.

The judgment highlights the limited authority presently available on assessment under the Care Act 2014 and is one of the first. The court identifies when discharging functions under Part 1 of the Act which includes assessment of need, a local authority has a duty to promote the well-being of the person being assessed and that in doing so must have regard to the dimensions of well-being set out in statute. It is clear from this judgment a local authority has to demonstrate that it has had regard, not only to the individual’s wishes but also to their circumstances.

The full judgment is available: JF, R (on the application of JF acting through his mother and litigation friend KF) v The London Borough of Merton (Rev 1) [2017] EWHC 1519 (Admin), 30 June 2017

 

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