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First Court of Appeal case on duties under Care Act 2014

8 September 2017, by Tim Baldwin

Tim Baldwin

Davey v Oxfordshire County Council (The Equality & Human Rights Commission and Inclusion London intervening) [2017] EWCA Civ 1308, 1 September 2017

The claimant sought judicial review of the decision of Oxfordshire County Council made in October 2015 to reduce the claimant’s personal budget and to revise his care and support plan pursuant to the Care Act 2014 (“the Act”). The effect of these decisions was to set the personal budget for the claimant’s care at £950 per week with effect from 1 May 2016 – a substantial reduction from his previous budget of £1651 per week. Morris J, in a judgment given on 27 February 2017 [2017] EWHC 354 (Admin), dismissed the claim. The claimant appealed on the first case in which the Act has been considered in the Court of Appeal.

The claimant received care for many years pursuant to an agreed care plan. The care was funded in a total amount of £1651 per week, partly by the defendant, and partly by the Independent Living Fund (“ILF”) in an amount of about £730, in part by the NHS and by a small means tested contribution from the claimant until June 2015. The ILF was closed down in June 2015, such that funding for the claimant’s care and support was provided by the defendant with a small contribution from the claimant. The defendant indicated it would reduce funding to £903 per week, but revised this and instead reduced the sum paid to £950 per week. This took effect from 1 May 2016. The claimant responded that his needs cannot be met by such an amount. By July 2015 the claimant was aware of the defendant’s proposed revised personal budget. The defendant carried out further assessments of needs, produced a revised care plan and personal budget, confirming the weekly sum of £950.

The claimant contended that the reduction to £950 per week is in breach of the defendant’s obligations under the Care Act 2014 and/or Wednesbury unreasonable. Two underlying reasons were given for the defendant’s decision to reduce the personal budget. The claimant has been prepared to accept a reduction to £1224.25 per week.  Mr Justice Morris had found the defendant’s decision lawful and the claimant secured permission to appeal

Lord Justice Bean for the Court of Appeal held on dismissing the appeal: “As Morris J rightly observed, it is understandable that the Claimant, Mrs Davey and other members of his family objected to the updated needs assessment, which has resulted in a substantial reduction in the level of the Claimant’s personal budget. Like the judge, I have great respect for the manner in which the Claimant, his family and his team of carers cope with his difficult situation. But that is not the same thing as holding that the Council’s actions have been unlawful. For these reasons, essentially the same as those of Morris J in his meticulous and comprehensive judgment, I would hold that the Council have not acted unlawfully.”

 

 

 

 

 

 

 

 

 

 

 

The Claimant sought judicial review of the decision Oxfordshire County Council made in October 2015 to reduce the Claimant’s personal budget and to revise his care and support plan pursuant to the Care Act 2014 (“the Act”). The effect of these decisions was to set the personal budget for the Claimant’s care at £950 per week with effect from 1 May 2016, a substantial reduction from his previous budget of £1651 per week. Morris J, in a judgment given on 27 February 2017 [2017] EWHC 354 (Admin), dismissed the claim. The Claimant appealed on the first case in which the Act has been considered in the Court of Appeal. The Court of Appeal handed down its judgment on 1 September 2017.

For many years, the Claimant has received adult social care support, under relevant legislation, based on a needs assessment and a care plan. Until June 2015 this care was funded in a total amount of £1651 per week, provided in part by the Defendant, in part by the Independent Living Fund (“ILF”) in an amount of about £730, in part by the NHS and by a small means-tested contribution from the Claimant. By January 2015 it had been announced that the ILF was to close down and it did so in June 2015. Since then, the funding of the Claimant’s care and support has been provided by the Defendant Council with a small means-tested contribution from the Claimant.

The Council first indicated that it would reduce funding to £903 per week, but revised this and instead (after a short period of tapering) reduced the sum paid to £950 per week with effect from 1 May 2016. The Claimant’s position is that his needs cannot be met by such a reduced amount. By July 2015 the Claimant was aware of the Defendant’s proposed revised personal budget. Following objections from the Claimant, in September and October 2015 the Defendant carried out further updated assessments of needs and produced a revised care plan and personal budget, essentially confirming the weekly sum of £950.

The Claimant contends that the reduction to £950 per week is in breach of the Defendant’s obligations under the Care Act 2014 and/or Wednesbury unreasonable. Two underlying reasons were given for the Defendant’s decision to reduce the personal budget. First, the Claimant could, in the Council’s view, spend more time alone without the benefit of a personal assistant (PA) being present. Secondly, the Claimant could and should reduce the amount which he pays to his PAs. The Claimant says that these changes pose two risks to his wellbeing: first, anxiety arising from having to spend unwanted time alone and, secondly, the risk of losing his established care team of 18 years.

These concerns are recorded throughout the history of the assessments. The Claimant and his family believe that the Defendant first set a budget figure and then assessed the Claimant’s needs so as to fit that budget. The Defendant denies this.  By the time of the hearing before the judge, the Claimant had agreed to spend time alone for four hours a day (2×2 hours), and accepted certain reductions in the terms and conditions of the PAs. On this basis, the Claimant has been prepared to accept a reduction to £1224.25 per week.

Lord Justice Bean for the Court of Appeal held on dismissing the appeal:

“As Morris J rightly observed, it is understandable that the Claimant, Mrs Davey and other members of his family objected to the updated needs assessment, which has resulted in a substantial reduction in the level of the Claimant’s personal budget. Like the judge, I have great respect for the manner in which the Claimant, his family and his team of carers cope with his difficult situation. But that is not the same thing as holding that the Council’s actions have been unlawful. For these reasons, essentially the same as those of Morris J in his meticulous and comprehensive judgment, I would hold that the Council have not acted unlawfully.”

Further details about the case can be found via BBC news.

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