Consideration of private evidence and carer’s needs under the Care Act 2014

August 7, 2020

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 social worker had concluded that JG ‘was not being supported in line with her communication needs and behavioural management plan and recommendations’ by her family and the carers provided through her direct payments. However, the evidence from those devising the plan was that there was ‘limited scope for any improved behavioural management’ and ‘it is unfortunately also highly likely that [the claimant] will continue to display significant levels of behavioural issues despite the support plan being in place and being delivered consistently, due to the chronic nature and complexity of her needs.’ Further, there was no suggestion from those professionals that the recommendations had not been implemented. Neither of these facts was acknowledged by the social worker. The court concluded ‘that there was evidence to show that the behaviour support plan was being followed, and that evidence was not referred to by [the social worker] when coming to his decision…As a consequence, I consider that his report is materially flawed in this regard, going beyond simply disagreement to failure to take into account all evidence which a reasonable decision maker would take into account.’
The court also found that the local authority had failed to take account of the full range of evidence relating to JG’s sleep problems. There was agreement that JG awoke nearly every night, and was taken to the downstairs of the house in the early morning; there was further evidence from JG’s consultant psychiatrist that these problems were long-standing and had been resistant to being addressed with medication or behavioural techniques. The court found that the social worker had not engaged with the evidence of JG’s psychiatrist, which was directly contrary to the social worker’s own conclusions. The court did ‘not consider that criticising a view so directly opposite to that of an expert can be described…as overzealous textual analysis. It amounts, in my view, to a failure to factor in and give consideration to a material piece of evidence…The points made…required to be addressed specifically rather than responded to in effect by conjecture as to how the problems might be resolved.’
The court similarly found that the social worker had ‘irrationally rejected the occupational therapy evidence of two privately instructed occupational therapists’ that JG required 2:1 support when in the community or using stairs, which was based on first-hand observations of JG. The local authority argued that the reports ‘were taken into account but also the defendant obtained its own occupational therapy specialist input…and was entitled to prefer those reports over those of the therapists privately commissioned by the claimant’s family.’ However, the local authority’s occupational therapist had not seen JG in a year, had a ‘very cursory look’ at the private reports, and stated that she was not aware of whether the private report was accurate or not. The court found that the consideration given to the private occupational therapist’s evidence was ‘unduly limited’ under these circumstances. The court found that there was not ‘a sufficient evidential base for the decision maker to come to the conclusions he did with regard to the occupational therapy evidence.’ The court further found that the local authority’s view that JG required only 2 hours daily of 2:1 care was flawed, as the needs which required a second carer for JG would not necessarily arise at predictable times during the day.
The court agreed with the claimant the social worker had failed to appropriately consider the evidence of JG’s mother, occupational therapist and consultant psychiatrist in relation to her needs around mobility, and that the assessment was again unlawful in this regard.
In summary, the court agreed that the needs assessment was irrational and therefore unlawful. ‘This is not just a matter of disagreement. The legal test, as set out above, is a high one, and I have no doubt that [the social worker] carried out a conscientious evaluation of the claimant’s circumstances. But there were, in my judgment, material pieces of evidence which he did not take into account in coming to the conclusions that he did and that the assessment is as a consequence unlawful.’
Finally, the court found that the local authority had acted unlawfully in failing to carry out a carer’s assessment on JG’s father as it had undertaken to do. Though the local authority argued that the point was academic as earlier assessments had not been challenged and that JG’s father was not a party, the court accepted that the purpose of the carer’s assessment was to determine whether JG’s father would be able to continue to provide support for her. Further, even if earlier assessments had not been challenged, the local authority had undertaken to carry out a fresh assessment which might have been subject to challenge: the carer’s assessment was required for ‘a proper evaluation of the claimant’s needs as a whole.’

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:

While JG’s NHS consultant psychiatrist and the private occupational therapist were aligned in their views, the court gave no indication that the private occupational therapy reports should be discounted simply because there were commissioned on behalf of JG. The social worker was obliged to engage with all of the evidence before him, and if he chose to prefer the local authority’s evidence, he needed to show the rationality for this preference. Here, it does not appear that the social worker gave any weight to the private reports, nor did he offer any reasons for discounting them wholesale: the court did not struggle to find that he acted irrationally in doing so.
Finally, it is of some interest that the court considered that the failure to conduct the carer’s assessment could be raised as a point by JG, rather than requiring the carer to make an application in his own right. The discussion of this point is limited, but interesting in finding that a needs assessment demands a consideration of a carer’s needs to be complete.

Arianna Kelly is a barrister at Kings Chambers.