R (on the application of) VI v London Borough of Lewisham [2018] EWHC 2180 (Admin), Andrew Henshaw QC (sitting as a Judge of the High Court), 15 August 2018
VI is a 55- year old woman who suffers from muscular dystrophy. She requires carer support for all personal care. She relies on a wheelchair and at night she is bed-bound without assistance. She challenged the local authority’s decision of March 2018 to confirm a reduction in her care package (which had occurred since August 2017) from 104 hours to 40 hours a week.
The reduction involved the removal of overnight care on the basis that night time needs could be managed through a pressure relieving mattress and incontinence pads. VI reported that her pain was made worse by the reduction in her care plan since August 2017, that she was in the same position for a long time during the night and unable to turn, have her pads changed, remained in soiled pads, could not move her legs, had an ongoing hot pain sensation in her leg and was at risk from intruders. However after a period of monitoring by district nurses the local authority assessed her as not needing support during the night.
The judge referred to passages in the CA’s decision in R (Davey) v Oxfordshire CC & Ors [2017] EWCA Civ 1308 in which it was said that the assessment under s 9(1) (a) and (b) Care Act 2014 is an objective assessment made by the local authority; under s 9(4) Care 2014 Act there is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes (although if the local authority does not assess the matters in s 9(4) Care Act, including the impact on well-being matters set out in s 1(2), there is a breach of statutory duty) and in R (KM) v Cambridgeshire CC [2012] UKSC 23 that the court should be wary of overzealous textual analysis of social care needs assessments carried out by social workers. The judge upheld the local authority’s decision as lawful.
The judge held that although pain relief and management is not included in the list of specific outcomes in the eligibility criteria, “physical and mental health and emotional well-being” is one of the wellbeing factors referred to in s 1(2) Care Act 2014 and pain is therefore a relevant consideration when taking a decision under the Act. However the assessment indicated that consideration had been given to VI’s concerns about pain and her expressed need to be turned in bed at night, that it gave “holistic consideration” of the wellbeing factors and neither the district nurse nor the evidence from VI’s GP had given reason to believe that the removal of night time care had led to deterioration in VI’s physical or mental well-being whether in the form of pressure sores, increased pain or mental health problems.
Whilst the adequacy of the number of daytime hours would require careful monitoring to ensure that VI was able to undertake the activities contemplated in the assessment, the assessment of March 2018 was not unlawful.
Comment
The wider context of course is the terrible underfunding of our social care system, such that such drastic cuts in care packages result, for people struggling with the effects of serious conditions.
The court adopted an approach of being “wary of overzealous textual analysis in its reading of the assessment”. It upheld the assessment, whilst it recognised that whether this care package would in fact be enough to achieve its aims would need to be monitored.
