Judge quashes decision by council to end specialist placement for epileptic man

A High Court judge has quashed a council’s decision to terminate a specialist placement for a 27-year-old man with severe epilepsy and mental health and behavioural difficulties.

The case of Clarke, R (on the application of) v London Borough of Sutton [2015] EWHC 1081 (Admin) involved a claim for judicial review brought by Perry Clarke against the London Borough of Sutton.

Clarke had been provided with supported living care by the London Borough of Enfield between 2011 and 2013. In 2013 he became "ordinarily resident" in Sutton’s area and as such the defendant became responsible for his care in place of the London Borough of Enfield.

The main issue in the judicial review was in relation to Sutton’s decision not to continue to fund a specialist placement – with epileptic care provider Independence Homes – previously funded by the London Borough of Enfield and as to the lawfulness of Sutton's assessment as to his needs.

Sutton Council carried out an assessment in August 2013 and concluded that Clarke’s care could be provided in a non-specialist placement. A support plan dated 23 September 2013 costed this at £357 per week as compared to the £1,300 per week for the package put together by Enfield.

His Honour Judge Sycamore, sitting as a judge of the High Court, noted that the burden on the claimant was a heavy one, “that is to say procedural irregularity or unreasonableness verging on absurdity”.

The judge said it was important to keep in mind that this was a case in which the claimant had been in receipt of the services for a number of years in circumstances in which his medical team and care providers had made it clear that his needs had not decreased.

It was therefore to be distinguished from the type of case in which a claimant was seeking services which he had not had in the past.

HHJ Sycamore said: “
In my judgment the assessment by the defendant demonstrates a failure to understand and address the claimant's medical and support needs. This is most apparent in the approach adopted by the defendant to the provision of support to provide three nights waking care a month against a background of medical and other evidence which demonstrates the need for 24 hour care in circumstances in which seizures, including sleep related seizures are unpredictable and cannot be pre-determined.

“The explanation as to the basis upon which three waking nights care a month are included within the package as offered in the hearing before me simply does not make sense and does not address the needs identified in the reports from the medical and other professionals.”

The judge said it was also the case that the claimant had a tenancy at his current placement which had been his home for more than four years and there had been no care plan produced from the proposed non-specialist care provider.

“…..[There] is no direct documentary evidence from the care provider as to how it would ensure the availability of sufficient trained staff to provide the necessary support identified by the professionals currently responsible for the claimant's care, in particular in terms of the provision of rescue medication,” HHJ Sycamore pointed out.

The judge said he had concluded on the particular facts of the case, notwithstanding the high hurdle faced by the claimant, that the decision by Sutton “failed to give appropriate weight to obviously relevant material and relied excessively on the non-expert view of a social worker in a face of a wealth of evidence to the contrary from appropriately qualified and experienced experts”.

HHJ Sycamore found that those opinions had not been given sufficient weight in the decision-making process and that in those circumstances Sutton Council should re-assess the claimant's needs and the extent of care that as a consequence was required.

The judge noted that it had been accepted that Article 8 [of the European Convention on Human Rights] was engaged, and said: “In the light of my conclusions and the need for a reassessment by the defendant I am satisfied that the defendant's decision that the claimant should be expected to move from his home at which he has a tenancy, to a placement of the defendant's choosing in circumstances in which no care plan has been provided by the proposed non-specialist care provider does amount to an unlawful interference with the claimant's rights to respect for home and private life.

“On the basis of the assessment, which I have deemed to be inadequate, it cannot be said by the defendant that suitable alternative accommodation and care is available nor was the claimant sufficiently involved in the defendant's decision-making process.”

HHJ Sycamore said that, in all of those circumstances, he was satisfied that it was appropriate to quash Sutton’s decisions to terminate Clarke's package of care and its decision in relation to the claimant's assessed needs and the services to be provided.