A service user’s preferences for care

The Administrative Court has handed down an important judgment on the wellbeing provisions of the Care Act. Simon Goacher, Morris Hill and Ken Slade look at the outcome.

In R (on the application of Luke Davey) v Oxfordshire County Council & anor [2017] EWHC 354 the Administrative Court has issued a useful ruling on the extent to which a local authority must consider a service user’s preference on how their care is provided when setting their personal budget. This is thought to be one of the first cases on the wellbeing provisions of the Care Act 2014 and the court found that, while the claimant's preferences had to be taken into account, they had to be distinguished from his needs for care.

The court also gave detailed guidance on several matters, including the assessment duty under the Care Act, decision-making under the Act, including the distinction between “needs” and “wishes”, and the legitimacy of a local authority reducing funding provision as a means of “developing independence”, the proper approach by social workers and the courts to the section 1 wellbeing factors, the adequacy of rates of pay relied upon by the local authority in its support plan, the UN Convention on the Rights of Persons with Disabilities, its role in Care Act decision-making, and its use by courts, the section 27 duty to take steps to each agreement, the function of the courts generally in judicial review challenges to decisions made under the Care Act, and the use of after the event evidence in judicial review challenges to Care Act decision-making.

In detail

The claimant, LD, aged 40 had quadriplegic cerebral palsy and severe visual impairment. He had lived in his own bungalow with a team of carers providing, with the exception of two hours a week, continual support paid for from his personal budget since the age of 21, paid for jointly by the Independent Living Fund ("ILF") and the NHS until June 2015 when the ILF closed, since when the defendant council had paid for his care.

On a reassessment, the council reduced LD's personal budget from £1,651 to £950 a week, on the basis that he could spend more time without carers and their wages could be reduced. LD applied for judicial review of this decision on the basis that it breached the requirements of the Care Act and/or was Wednesbury unreasonable.

Section 1 of the Care Act states that "the general duty of a local authority is to promote that individual's well-being." This was central to both sides’ arguments but in the view of the judge, was "a duty, when taking decisions, to have regard to each person's particular individual circumstances and not to make generalised assumptions bases on characteristics such as age, physical condition etc." In particular, he noted, while the care user's needs had to be met, these needs had to be distinguished from their wishes. As long as LD’s needs were being met, the council was not responsible for meeting all his wishes.

The court found that the council’s role was to assess needs to decide whether care could assist the user in reaching their objectives, but it did not have a duty to meet all of the user's desired outcomes. Part of this meant the user had to be involved in the making of their care plan and the council had to take all reasonable steps to reach agreement with the user. There was, however, no outright duty to reach agreement if this was not possible after taking reasonable steps.  

The decision is also helpful in summarising the court's role in reviewing social care assessments. Based on previous cases, the judge stated that:

• "The courts should be wary of overzealous textual analysis of social care needs assessments carried out by social workers for their employers with the risk of taking them away from front line duties."
• "It is not for the Court to be prescriptive as to the degree of detail in an assessment or a care plan - these are matters for the local authority, and if necessary, for its own complaints procedure or resort to the Secretary of State. The court is the last resort where there is illegality."
• "The social worker, in the assessment, is entitled to rely upon what the service user told him at the time (even if the service user later changes evidence); there is no need for precise formulation of assessment of mental health impact in the needs assessment itself."

Conclusions and implications

The court was entirely sympathetic to LD about the cuts to his budget and the resulting effects on his life, but this was not enough to overturn the council’s decision. Care users’ preferences always have to be considered, but councils can distinguish between preferences and needs, provided they do so with care and clear reasons.

The judgment has implications for all those involved with Care Act assessments, provision and funding decisions, as well as those involved in judicial review challenges to such decisions and although councils and other decision makers involved in health and social care are given some scope for flexibility in the decision, what is apparent is that using the decision will require careful distinction of needs from wishes and how this analysis can be carefully and properly set out.

Simon Goacher is a partner, Morris Hill is an Associate and Ken Slade is a Professional Support Lawyer at Weightmans. Simon can be reached on 0151 243 9582 or This email address is being protected from spambots. You need JavaScript enabled to view it., Morris can be reached on 0151 242 7990 or This email address is being protected from spambots. You need JavaScript enabled to view it. and Ken can be contacted on 0151 242 7953 or by email.