Social Care Law – Can a council legally reduce a care package?

Can a council legally reduce a care package? Belinda Schwehr examines a case with significant implications for any person with a care plan.

Luke Davey is 39 years old, is quadriplegic and has cerebral palsy. He was assessed as needing 24-hour care in 2015, and had had a care package in place for twenty years. When another funding source was closed down, his local authority, Oxfordshire Council, sought to reduce his care support to 17.5 hours per day, which would leave him alone for six hours. Mr Davey mounted a legal challenge to this decision.

Mr Davey had an established care regime with carers, including family members, who had looked after him for years. He had been used to receiving funding of £1,651 which included a payment of £730 per week from the Independent Living Fund which closed down in June 2015.

Inevitably, when the Fund closed, a loss of wellbeing was going to be experienced whenever a local authority decided that it could not, and would not, continue to pay for everything that the individual had previously had the means to buy. Although Oxfordshire kept his package up at first, a much reduced overall budget for personal care in the sum of £950 per week was ultimately offered. The parties were more than £300 per week apart and hence the legal challenge.

The case has given some clarity on the following issues:

  • What must a local authority show that it considered from the statutory wellbeing features to comply with the wellbeing promotion duty? The judge said that it was each person’s particular individual circumstances.
  • Who is the decision-maker on what a person needs, after they have been found to be at least eligible? The answer was that it is the local authority.
  • To what extent are the service user’s personally desired outcomes a necessary or determining factor for care planning?

The judge said: ‘There is no warrant for a conclusion that [the] balance is weighted more in favour of the service user, than it would otherwise be under CA 2014, to the extent that the service user can have the final say on his own needs and personal budget or dislodge the principle that, under CA [Care Act] 2014, the decisions are ultimately to be taken by the local authority. The wishes of the disabled person may be a primary influence, but they do not amount to an overriding consideration.’

The case also went on to consider the extent to which a reduction in social activities on account of a reduced budget would invalidate a care plan’s legal validity: ‘It is possible that there might be less opportunity to go on day trips accompanied by his PAs (personal assistants). This very limited curtailment does not amount to a breach of Section 1 of the Act’.

When it came to the issue of how minutely (or not) a local authority needs to be able to justify its mathematics in relation to its stance that what it is offering will conceivably and defensibly meet need—in this case it was concluded not down to the exact penny – the judge was satisfied that the necessary evidence basis might in certain cases need only be based on the staff’s opinion, based on ‘experience’. There was no evidence that carers would leave, as the two main carers had withdrawn their resignations and the minimum wage of £7.20 ‘and the £40 night shift rate were compatible with rates many other DP service users were paying’.

Emotional well-being

Rights under article 19 of the UN Convention on the Rights of People with Disabilities (UNCRPD) are not going to be of any real use to a disabled person, where the domestic legal framework presents as more detailed in relation to domains of daily life and wellbeing—in particular, no specific ambiguity in the 2014 Care Act was identified by the judge, in respect of which Article 19 of the UNCRPD, might serve as an interpretive tool. (see box)

Of greater use to clients, however, was the comment that a person’s emotional and psychological health and wellbeing are factors which are so obviously material to a proper assessment or care plan that a failure to take them into account would constitute grounds to vitiate any relevant decision.

It’s the first real case on the 2014 Care Act  – but not an indication that a massive change to a person’s lifestyle will always be a safe bet for a council.

It’s confirmation if any were needed that it is defensibility and rationality and engagement that a council can’t skimp on. The judge said: ‘The defendant did put a very substantial amount of effort in, over an extended period, to seek to assuage the concerns of the claimant and his mother.’

The funding (and thus the PA hours) had been sensibly tapered down over a period. An experienced social worker was brave enough to assert in this case that being alone for longer periods of each day would improve Mr Davey’s independence and confidence, and that changes in the claimant’s current care team would be positive for the claimant and his emotional wellbeing, enabling him to reduce dependence upon specific carers.

‘That was a social worker’s assessment which could not be regarded as Wednesbury unreasonable and was a matter for her professional judgment. The social workers had given detailed reasons for their professional judgment.’ And  ‘…I am satisfied that Ms Lovelock and Ms Collins did genuinely believe both that developing the claimant’s independence was a need and that spending more time alone was a way in which to achieve this end.’

For legal framework commentators who embrace the notion that councils could be persuaded to use the power in s19 to deliver on a subjective view of the client’s needs, the following part of the judgment would appear to make such a stance highly improbable in hard financial times:

‘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. On the other hand if, in the course of a needs assessment, the local authority does not assess the matters specified in CA 2014, s 9(4) (including the impact on wellbeing matters set out in CA 2014, s 1(2)) then there is a breach of the statutory duty. There is, thus, a duty on the part of the local authority to assess these factors.’

The judgment indicates that ‘The result may impose change or even strictures upon the claimant which are unwelcome, but that does not of themselves mean that the process has been unlawful.

A position on the part of a client, carer and advocate that it is essential there are no changes to a plan, although understandable in human terms, cannot be allowed to fetter the judgement and probing for an evidence base by review staff. It is always best for both sides to engage, but to ensure that words such as: ‘if problems do arise from the trialled changes, we will revisit the issue’ are added to the plan.

It’s not surprising that Mr Davey lost, on the facts of the case. His carers withdrew their resignations and he very honestly acknowledged that as long as he didn’t have to have more than two hours alone, he could stand more than one period a day of being alone, without suffering from depression or anxiety, and he refused counselling.

But I don’t think that the case sends any particular message out that this is an advice field that will just disappear; it took several years after the 1990 legislation before the Gloucestershire case kicked off the use of the judicial review remedy in 1995, use of which then expanded to several adults’ public law cases a month!

Article 19 of the UN Convention on the Rights of People with Disabilities (UNCRPD)

Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

(b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

(c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

What this case means

A local authority must consider each person’s individual circumstances in deciding whether what they are doing complies with the wellbeing promotion duty set out in the 2014 Care Act.

A failure to take account of someone’s emotional and psychological health and wellbeing would be grounds for objecting to a decision.

A disabled person’s wishes MUST be taken into account but any decision about a care package will ultimately be made by the local authority.

Evidence about the cost of someone’s needs can be based on the views of staff with relevant experience.

The rights set out in Article 19 of the UN Convention do not offer a disabled person an alternative legal basis for a challenge to those specified in the 2014 Care Act.