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SPOTLIGHT |
A recent judgment highlights the importance for local authorities to carefully consider privately-obtained evidence in Care Act 2014 needs assessments and how a carer’s needs interact with those of a person needing care, writes Arianna Kelly.
R(JG) v London Bourough of Southwark [2020] EWHC 1989 (Admin) concerned a judicial review of a needs assessment conducted in March 2020.
Background
JG is described as a ‘profoundly disabled young woman who requires care and supervision with all aspects of her daily life. She has multiple medical problems including severe learning difficulties, autism and physical disabilities.’ JG sometimes injured herself and had to be supported carefully to ensure that she remained safe from harm. She was cared for at home by her parents and a package of domiciliary carers paid for by direct payments (providing 73 hours of care weekly), which included respite for her parents.
A previous application for judicial review in 2018 had been resolved by the local authority providing an additional 8 hours of care daily for overnight care and the local authority had continued to provide the care on a without prejudice basis.
Application
There was a fundamental disagreement between JG’s parents and the local authority as to the extent to which she required 2:1 support.
The social worker assessing JG on behalf of the local authority took the position that though as a matter of fact, JG was receiving 2:1 care by her mother providing care alongside paid carers, JG did not actually require 2:1 support for more than 2 hours daily. The social worker took the view that JG’s mother was choosing to act as a second carer, and was not utilising JG’s support hours to ensure that she was receiving appropriate respite in her caring role.
The social worker also took the view that JG’s mother was not following JG’s behavioural plan, and was dismissive of suggestions by professionals for how JG’s care could be managed on a 1:1 basis. The assessment stated that during a period of attending college, JG had made progress in her independence and mobility, had not self-harmed and had been able to be cared for successfully on a 1:1 basis, an argument disputed by her parents who considered that the college had exaggerated JG’s abilities. The social worker considered that JG required further stimulation and contact with peers in the community, but that her parents did not consider that she would benefit from education and had stopped her attendance at college. The social worker did not consider that any meaningful substitute had replaced her former programme of education (despite several suggestions by professionals which had been made), and her life revolved around the family home and a daily trip to a local park. The social worker looked to evidence that JG had been supported by one carer while attending college, and had been seen in the community and at her day centre being supported by one carer recently to the assessment. Finally, the social worker stated that JG’s mother had made it extremely difficult to assess JG, as the social worker had not been allowed to see her, and that record-keeping by the carers was limited.
JG’s parents, consultant psychiatrist and paid carers agreed with the views of her family that JG required 2:1 support when receiving personal care and when in the community due to her challenging behaviours, non-compliance with care, risk of falls and self-harming behaviours. JG’s parents had also obtained private occupational therapy assessments which supported this view. JG’s carers particularly highlighted the need for a second person to prevent JG harming herself or others while the first carer engaged in personal care.
However, the local authority argued that ‘that this view was not based on any formal health assessment but only on NG’s view.’ The social worker took the view that JG might temporarily require 2:1 care with personal care due to the lack of needed adaptations in her present accommodation. The social worker disputed the accounts of JG’s family that she had intensive night-time needs, stating that that the carers’ records evidenced much lesser needs, and that in any event, the carers did not appear to take appropriate actions to minimise JG’s being up at night.
Grounds and judgment
The application was a challenge to the rationality of the local authority’s conclusions in the needs assessment and care plan on the basis that the social worker had failed to take the full range of relevant evidence into account. The court agreed that the assessment had reached irrational conclusions and granted the application.
Specifically, the court found that:
The assessment was found to be unlawful, and the local authority appears to have been ordered to re-evaluate JG’s needs ‘on the basis of a full consideration of all the relevant evidence.’
Analysis
Following closely on Raja v Redbridge, JG highlights the necessity for a local authority assessing needs for care and support to engage with contrary evidence which has been presented to it: it is not enough for an assessor to simply prefer his own evidence without explaining the reasons why he has rejected contrary findings. The argument that the local authority had found considerable challenges in assessing JG due to her parents limiting access to her appears to have found little traction, particularly where the assessor was rejecting the evidence from professionals who appeared to have had worked directly with JG to consider the nature of her needs.
The case is also of interest for two further points:
Arianna Kelly is a barrister at Kings Chambers.