27 March 2018, by Bethan Harris
CP v North East Lincolnshire Council  EWHC 220 (Admin), 9 February 2018 HHJ Graham Wood QC
A claim for judicial review was brought on behalf of CP, a 22 year old woman who had complex disabilities and required 24-hour care. She lived with her parents who cared for her with the help of paid-for care. She attended a daytime placement (Fix n’ Kiks).
The claim was first brought alleging that the personal budget lacked transparency, it was not enough to meet CP’s needs and took into account family support which the family was not willing and able to provide.
There were parallel proceedings in the First Tier Tribunal to challenge a refusal to provide an Education and Health Care Plan (EHC) under the Children and Families Act 2014 (CFA 2014) to attend Fix n’ Kiks. It was argued that in the meantime the cost of attending the placement should have been included in the personal budget under the Care Act 2014.
The alleged defective care plans were superseded by a new care plan which was accepted as reasonable. This meant that ultimately the claim was that past assessments and care and support plans had been unlawful, and that in effect arrears of direct payments should be paid on the basis that the claimant and her parents had been out of pocket as they had been required to make up the shortfall in care services (paragraphs 60 -61).
CP’s father filed evidence of suffering recent strokes and deteriorating health. The parents asserted that they had covered additional costs in excess of £43,000.
The claim was rejected.
- Central to the rejection was the ruling that past unlawfulness was not relevant in a judicial review unless it had continuing effect whereas the care plans in question had been overridden by a new care plan (95,96).
- However the judgment confirmed that:
- any failure to provide a transparent budget in a care and support plan represents a prima facie breach of 26 Care Act 2014 and is susceptible to judicial review if not corrected (94);
- a care plan that assumes a level of family input or seeks to impose an unreasonable demand on an unwilling family carer is prima facie unlawful; 10.26 of the Care Act 2014 statutory guidance explains the approach; an adult’s family carer is under no obligation to meet or continue to meet the eligible needs of the adult (97).
- The court issued a reminder that several steps can be taken short of judicial review; the process of assessment is by its nature a fluid one; a complaint could be made or a further assessment requested (100).
- As for financial redress, dealt with hypothetically and in brief only, it was held that Richards v Worcestershire  EWHC 1954 was not persuasive authority that damages can be awarded for public law breaches. As regards restitution, there was no unjust or unfair advantage to the local authority by not paying money that should have been allocated to CP as the resources would have been reallocated to others. Such a claim would be contrary to public policy.
The circumstances giving rise to the claim evidently were pressing ones: the original care package for CP was insufficient and CP’s parents providing care beyond what they were able and willing to provide. However, as is often the case, the proceedings prompted steps to be taken. As a result, those serious deficiencies became historical. The judgment contains useful points of principle on the need for personal budgets to be transparent and that no assumptions must be made as to the level of care family members are expected to provide. However there is round rejection here of an alleged basis for a claim for damages/restitution for past deficiencies in the personal budget.
The full judgment is available here: CP v North East Lincolnshire Council  EWHC 220 (Admin), 9 February 2018