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Requests for care pending assessment

A recent judgment is extremely significant for local authorities considering requests to provide care pending assessments or reassessments of needs, writes Arianna Kelly.

In R (Raja and Hussain) v LBC Redbridge [2020] EWHC 1456 (Admin) the court made a number of important findings on point, including that:

  1. A local authority has a power to provide urgent care under s.19(3) Care Act 2014 pending reassessments of care needs, as well as prior to initial assessments;
  2. The power to provide urgent care must be exercised reasonably; and
  3. In the absence of a reasoned decision "involving the specialist and expert local authority officers…explaining how they have approached the urgency and the need and the alternatives, and giving the justification as to why their response is the appropriate response…it will be the harder for the defendant to resist a reasonableness claim, invoking the built-in latitude applicable to it as the primary decision-maker."

The judgment is also important for its findings on when a court should consider a refusal to provide care on a ‘rolling’ basis rather than as a one-off decision (and thus not bound to a strict, three-month time limit for bringing the challenge). The court noted several keys features which caused it to consider that the challenge was to an ‘ongoing’ rather than one-off decision: "a continuing statutory function; a continuing request for a particular care provision response; a continuing refusal of that request; and the consistent central issue as to whether the requested response was, in all the circumstances, the sole justifiable response such that the refusal was unreasonable in a public law sense."

The application

The case was heard before Mr Justice Fordham. The case was brought on behalf of two adult brothers with severe physical and learning disabilities by their mother acting as their litigation friend. The mother had asked Redbridge use its power under s.19(3) Care Act 2014 to provide overnight care to meet the brothers’ urgent needs on an interim basis prior to carrying out a needs assessment or making an eligibility determination. S.19(3) Care Act states:

(3)A local authority may meet an adult’s needs for care and support which appear to it to be urgent (regardless of whether the adult is ordinarily resident in its area) without having yet—

(a)carried out a needs assessment or a financial assessment, or

(b)made a determination under section 13(1). [eligibility]

Redbridge had declined to provide interim care pending the reassessment, and the claimants sought an order directing that urgent care be provided. The local authority had not taken the ‘easements’ created in the Coronavirus Act 2020, and thus the analysis related to the unamended Care Act.

Facts

The brothers had significant needs for care, needing continuous support during the day and regular support with continence and skin integrity needs overnight. They lived with their mother, who provides much of their care and support, with the assistance of carers funded by direct payments. Their care plan involved three daily care calls for personal care, 4 hours of outreach care five days per week and overnight respite for their mother one night per week. Other than on the night when respite was provided, their mother had wake up several times nightly to provide continence care to prevent their suffering from pressure sores. The mother had health issues of her own which affected her ability to perform physical care tasks, and had submitted evidence from her GP that her health issues had become worse in recent years.

In 2017, Redbridge had assessed the mother as being able to meet her sons’ overnight needs without help, with one night’s respite per week. The claimants’ solicitors had repeatedly sought for interim care to be provided (commencing in June 2019) on the basis that the mother was no longer able to continue to care for them overnight without endangering her health. Redbridge had agreed to reassess the brothers’ needs in August 2019, but by the hearing date in April 2020, it remained pending. The claimants’ solicitors also criticised the failure of the local authority to take a formal decision on the repeated requests following the first. The court considered that

"The central question which arose in this case, from June 2019 through to the hearing before me at the end of April 2020, was whether an urgent night-time care need had arisen, because the mother could no longer reasonably be expected to do this, with the sole justifiable response being the urgent interim care provision to allow for night-time carers, pending a full reassessment of needs."

Interim relief was granted in December 2019.

The parties’ submissions

Redbridge resisted the application throughout, though did not offer any witness statement from a decision-maker on the consideration of the request for interim relief, nor could it point to any reasoned decision for rejecting the request.

The submission on behalf of the claimant was that the ‘sole justifiable response’ to the request was to grant care on an interim basis, while Redbridge argued that the power was a discretionary one rather than a duty and it was not obliged to use the power in this case. The court noted that public law duties must be exercised reasonably and a challenge may be raised on this basis. It emphasised that challenges of this nature of difficult to sustain, and that "the merits are for the defendant as primary decision-maker and the built-in latitude for reasonable evaluative judgments, to be respected by Courts, is a very significant one." The court summarised the dispute:

at the heart of the claimants’ skeleton argument was this submission: “The claimants’ position is that immediate funded night-time care is the sole justifiable response to meet their urgent needs”. At the heart of the defendant’s skeleton argument was this submission on the point: “The claimants’ case that ‘the only justifiable care to meet this [urgent need for interim care] is funding for 10 hours night-time care per day’… is not… supported by the evidence the claimants rely upon. There was no evidence before the local authority that the claimants were not being provided with night-time care as required under the current arrangements. There was no basis upon which it could be said that no reasonable local authority would have failed to provide 10 hours a night additional care”.

Rolling judicial review

The court considered that the challenge raised related to an alleged ‘ongoing failure’ by Redbridge, rather than a decision taken on a particular date. Under these circumstances, it was appropriate for the parties to file fresh evidence for the court’s consideration, and to consider the lawfulness of Redbridge’s refusal to provide care as of the hearing date. While the court noted previous judicial cautions against ‘rolling’ judicial review of an ongoing unlawful action, it also emphasised the need to have flexibility in considering when a ‘decision’ is taken due to the variations of circumstances which come before the court.

The court considered that there were several features of the present case which made it correct for the court to consider it on a ‘rolling’ basis rather than as a one-off decision: "a continuing statutory function; a continuing request for a particular care provision response; a continuing refusal of that request; and the consistent central issue as to whether the requested response was, in all the circumstances, the sole justifiable response such that the refusal was unreasonable in a public law sense."

The scope of s.19(3) Care Act 2014

Redbridge argued that s.19 was not applicable in this case, on the basis that it ought to relate only to cases where no initial needs assessment had been undertaken. Where a re-assessment of need was sought in this case, Redbridge argued that the prior needs assessment stood until it was overtaken by the new assessment.

The court rejected Redbridge’s submissions on this point, finding the existence of a prior needs assessment did not limit the application of s.19(3). The power to meet urgent needs pending a needs assessment could equally apply to a reassessment of needs as to an initial assessment. Where Redbridge had agreed to conduct a full reassessment as of August 2019, the position was that ‘a needs assessment was to be carried out but had not “yet” been carried out’, making it possible for Redbridge to use its powers under s.19(3). Alternatively, the local authority would have had the power under s.27(4) Care Act to make changes to the claimants’ care plans. The substance of the dispute came down to the question of whether Redbridge had acted reasonably in refusing to exercise its power to make an interim care provision, rather than whether this power existed under s.19(3). The court found that, in any event, if the claimant had wrongly relied on s.19(3) rather than s.27(4), it would have been an injustice to refuse permission for the claimant to amend the claim to bring a challenge for a failure to exercise s.27(4) powers where the substance of the dispute remained.

Reasonableness of the refusal to provide care

The court noted that the dispute had been long-running, and the fact of the request for additional care while the reassessment was pending did not oblige the local authority to grant it. However, the court identified several flaws in the decision-making process in relation to the request:

  1. The local authority repeatedly stated in correspondence that it was unable to make a change to the care plan pending reassessment. This was not correct, as the local authority did have a discretionary power under s.19(3) or s.27(4) to take this action. Instead of considering whether the discretionary power ought to be used, the local authority ruled out the possibility without a decision being taken on the basis of the facts of the case.
  2. The local authority asserted that ‘health and safety’ concerns arising out of staff providing support with moving and handling prior to assessments being undertaken could entirely justify the refusal to make an interim care provision. The court noted that the same ‘health and safety’ concerns would apply to whoever was doing the moving and handling in the absence of such assessment, including the claimants’ mother - who was left in this role with very limited support pending the local authority’s assessment. The court did not accept that the refusal to make a decision on whether urgent needs existed pending the outcome of the assessments was appropriate where "there was a real-world situation, needing an answer."
  3. Finally, the court noted a ‘theme’ in pre-action correspondence from the local authority in which the claimants’ solicitors were repeatedly accused of failing to provide appropriate evidence to support their request for urgent care. The court noted that expert reports had been provided by October 2019 to support the request, and there was no evidence demonstrating that these reports had been considered as part of a decision-making process by the local authority. The court did not accept that the reports had failed to set out a basis for what care was sought, and why it was needed on an urgent basis.

For those reasons, the court considered that at the time the judicial review application was been made in December 2019, the local authority had not been acting reasonably.

In considering whether that unlawfulness continued at the April 2020 hearing date, the court noted that Redbridge had had leave to file further evidence demonstrating the reasons for its refusal to provide interim care, but had not filed any witness statements or a reasoned decision document. The court noted that in these cases, it would look to see whether a "reasoned decision document…involving the specialist and expert local authority officers conducting a s.19(3) reasoned decision, explaining how they have approached the urgency and the need and the alternatives, and giving the justification as to why their response is the appropriate response."

In this case, no reasoned decision document was produced. The court observed that while it was possible for a decision-maker to make a reasonable decision without such a document "it will be the harder for the defendant to resist a reasonableness claim, invoking the built-in latitude applicable to it as the primary decision-maker, when it is unable to point to a document in which someone, having the statutory function entrusted by Parliament, grapples with the key questions and reasons out an adverse response."

While the full re-assessment remained outstanding at the time of the hearing, reports completed for the local authority by occupational therapists and others supported the claimants’ case that their mother was unable to meet their needs on her own at the time of the hearing, and they required overnight care to ensure their needs were met. A January 2020 assessment had recommended that the interim care ordered by the court was to remain in place pending the full reassessment, though this was not communicated to the claimants and was disclosed in evidence only a few days prior to the hearing.

The court found that the claimants’ submission that interim care was the sole justifiable response pending the outcome of the reassessment was well-founded, particularly where the local authority’s own assessor had arrived at the conclusion that the interim care should continue. A mandatory order was made requiring the local authority to provide urgent care until 7 days after completing the reassessment of needs, and the local authority was ordered to pay the claimants’ costs from the date that the claimants’ expert reports were sent to the local authority.

Analysis and commentary

This case is one with potentially very significant impacts for local authorities. Particularly in cases of people with complex needs for care and support, assessments and reassessments can take considerable time and involve input from multiple professionals. The timescale for reassessment in this case between first request for reassessment and hearing date was 10 months, and the assessment was not complete as of April 2020.

This judgment provides considerable support for individuals who are requesting additional support to receive a reasoned decision from the local authority as to whether it will be provided pending reassessment, with the local authority grappling with the evidence presented by the person. In this case (akin to R(JF) v Merton [2017] EWHC 1519 (Admin)), the claimant had presented expert evidence establishing a prima facie case for what was requested, and the local authority had refused the request without giving any reasons for rejecting that evidence. In such cases, local authorities will likely face an uphill battle in demonstrating the reasonableness of such a refusal.

Arianna Kelly is a barrister at Kings Chambers.

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