The European Court has upheld the long-standing principle that parties to a dispute should be able to choose their lawyers without having to go through a tender process (or use a framework).
JF was, at the relevant time, 22 and he has complex needs arising from his learning disabilities and autism. He was at a further education college with his placement, due to terminate at the end of March 2016. The Council (the London Borough of Merton) looked to place JF in an alternative residential care setting but failed to follow the necessary steps, under the Care Act and accompanying Statutory Guidance.
The Judge, HHJ Anne Whyte QC, gave a short and helpful analysis of the duties of local authorities in such cases as set out in the Care Act, and this is set out in the Appendix to this briefing.
Case law has helped clarify what and how relevant considerations are to be taken into account in making the decision about a person’s care needs, as follows:
- where there are specific factors required by law to be taken into account, a failure to take account of such factors will necessarily make the decision unlawful;
- there are other (non-obligatory) factors which may be taken into account (or indeed which others or the court itself would have taken into account), but a failure to take such factors into account will not make the decision unlawful; and
- there is also a class of factors which ought to be taken into account and a failure to take account of such factors will make the decision unlawful; such factors have variously been described as “relevant” or “clearly relevant” or “so obviously material” to the exercise of the particular discretion such that they ought to be taken into account.
The local authority will make the decision about the care assessment, and the Court is keen to avoid detailed scrutiny of the social worker’s assessment and will be slow to substitute its own view; it will only interfere if the decision is unreasonable to the extent that the decision is perverse. Public law criteria are the basis for challenging an assessment, not the professional judgements of the professionals making the decision. A person who challenges the decision must demonstrate errors of process or errors of reasoning that rob the decision of any logic; the intensity of the review of such a decision by a Court will depend on the impact of the decision. In the case of JF, his dependency was high, so the Court applied a greater level of scrutiny to the decision-making process.
Findings of Fact
There were very many, and varied allegations about the shortcomings in the assessment carried out, and in each case, the judge conducted a detailed (intense) scrutiny of what the local authority had actually done. In some areas, the assessment was compliant, in others it was not.
Certain features of the decision-making process in JF’s case that were found to be in breach of the Care Act duties are worth highlighting because they are typical of decisions where it is apparent to both individuals and providers that, to say the least, “corners have been cut” in the assessment and care planning process:
- the failure to have considered the need for a multi-disciplinary team (“MDT”) to manage JF’s care and support was fatal; the mere assertion by the social worker than an MDT was not necessary was not good enough;
- a decision to terminate a placement before a proper assessment of the person’s needs and the development of a new Care Plan for an alternative setting was unlawful;
- anything less than a compliant Care Act assessment decision will not be sufficient for the purpose of proper decision-making, even if other secondary reports are available, they are not sufficient;
- no reasonable local authority should terminate the placement of someone with complex needs similar to JF’s, without having conducted a lawful assessment of those needs and without having lawfully decided that suitable alternative accommodation was available to meet those needs.
When faced with local authorities seeking to change care arrangements providers, families and advocates should always seek clarification of the process being adopted and verify that the authority is committed to following due process, in which the well-being of the individual is central and that follows the proper Care Act structure for assessment and care planning.
A strict legal analysis is a helpful discipline to adopt when trying to decide whether the local authority is in breach of its obligations. The ability to challenge an assessment is essentially a matter of whether the law has been followed rather than being a judgement about what care is being offered.
It can be dangerous for too much weight to be given in the assessment process to the wishes of the individual, even though the Courts have emphasised that any assessment process ought to start with the assumption that the person involved is best placed to determine which will serve his or her well-being best. This is because the local authority retains a significant margin for determining which services it would provide to meet the assessed needs.
Disclaimer: Whilst every effort has been made to ensure the accuracy of these materials, advice should be taken before action is implemented or refrained from in specific cases. No responsibility can be accepted for action taken or refrained from solely by reference to the contents of these materials.
© Anthony Collins Solicitors LLP 2017
APPENDIX – SUMMARY OF CARE ACT DUTIES
- Sections 1(1) and (2) of the Care Act each impose a distinct duty to promote the individual’s well-being
- Section 1(3) contains a separate duty to have regard to the matters listed in that section, namely:
(a) the importance of beginning with the assumption that the individual is best placed to judge the individual’s well-being;
(b) the individual’s views, wishes, feelings and beliefs;
(c) the importance of preventing or delaying the development of needs for care and support or needs for support and the importance of reducing needs of either kind that already exist;
(d) the need to ensure that decisions about the individual are made having regard to all the individual’s circumstances (and are not based only on the individual’s age or appearance or any condition of the individual’s or aspect of the individual’s behaviour which might lead others to make unjustified assumptions about the individual’s well-being);
(e) the importance of the individual participating as fully as possible in decisions relating to the exercise of the function concerned and being provided with the information and support necessary to enable the individual to participate;
(f) the importance of achieving a balance between the individual’s wellbeing and that of any friends or relatives who are involved in caring for the individual;
(g) the need to protect people from abuse and neglect;
(h) the need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.
- A failure to assess the following matters listed in Section 9(4) is a breach of the authority’s statutory duty:
(1) Where it appears to a local authority that an adult may have needs for care and support, the authority must assess:
(a) whether the adult does have needs for care and support; and
(b) if the adult does, what those needs are.
(2) An assessment under subsection (1) is referred to in this Part as a “needs assessment”.
(3) The duty to carry out a needs assessment applies regardless of the authority’s view of:
(a) the level of the adult’s needs for care and support, or
(b) the level of the adult’s financial resources.
(4) A needs assessment must include an assessment of:
(a) the impact of the adult’s needs for care and support on the matters specified in section 1(2),
(b) the outcomes that the adult wishes to achieve in day-to-day life, and
(c) whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes.
(5) A local authority, in carrying out a needs assessment, must involve:
(a) the adult,
(b) any carer that the adult has, and
(c) any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.
(6) When carrying out a needs assessment, a local authority must also consider:
(a) whether, and if so to what extent, matters other than the provision of care and support could contribute to the achievement of the outcomes that the adult wishes to achieve in day-to-day life, and
(b) whether the adult would benefit from the provision of anything under section 2 or 4 or of anything which might be available in the community.
(7) This section is subject to section 11(1) to (4) (refusal by adult of assessment).
- Section 9(4) does not impose a duty to achieve the outcome the individual wants, but only to consider whether the care and support offered will contribute to those outcomes.
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