Judge quashes cut in community care provision for man with learning difficulties
A High Court judge has quashed a council’s decision to reduce the community care provision for a 23-year-old man with learning and communication difficulties.
The claimant, O, in OH v London Borough of Bexley [2015] EWHC 1843 also had Down’s Syndrome and general developmental delay.
In dispute was what happened after O finished attending a residential special school in Grimsby where he had resided from 2010 to July 2014.
Bexley had contended that:
- the claimant had been given a baseline care package of 4 days of day care per week (£115);
- for a limited time (4 August 2014 to 21 September 2014), the council had agreed to provide additional support equating to 24 hours of care per week (£296) on an interim basis only;
- the interim package of support ended and the claimant reverted to his baseline care package of 4 days of day care per week.
However, the judge, Mr Justice Roger Ten Haar QC rejected the suggestion that a baseline care package had been agreed at an assessment meeting on 6 June 2014.
Reviewing various emails and other documentation generated over the summer, the judge found that both parties had expected O to go to college in the Autumn and that a reablement assessment would take place in September.
They therefore both expected the interim package would need to be reconsidered in about September.
He also noted that after 21 September the payments had come to a complete halt. “The position did not revert to a ‘baseline care package’ but reverted to no care package at all,” he found.
The judge said that on the evidence before him, no further assessment was carried out on 21 September or at any time between then and the hearing.
“There has never been any explanation as to why if it was appropriate to decide in mid July to allow 24 hours community care per week, it had ceased to be appropriate to do so after the 21st September,” Mr Justice Roger Ten Haar QC said.
“In my view, there is no evidence at all of any assessment at any stage of whether the day care solution was appropriate. There are certainly indications in the papers that it is not a satisfactory solution, but I reach no conclusion as to that.”
The judge considered each of the three grounds for judicial review.
The first was that there had been a failure to review O and supply a revised support plan. The judge was satisfied that this ground was made out as there was “no evidence whatsoever” of any assessment or any appropriate support plan to deal with O's care needs after September 2014.
Mr Justice Roger Ten Haar QC also concluded that the second ground – a failure to give reasons for reduction in care – was similarly made out.
“Even if the evidence supported the existence of an agreed baseline care package, the situation cried out for an explanation by the defendant as to its approach when the reablement assessment did not take place and O did not go to college,” he said.
The third ground was an alleged failure to take all reasonable steps to reach agreement, with O and his parents, as to O's care.
“Given the lack of transparency and confusion to which I have referred…., there is substance in this complaint, but it does not seem to me to be the real point of concern, Mr Justice Roger Ten Haar QC said.
“The real point of concern, as it seems to me, is that the defendant never came forward with any assessment of what would be an appropriate care package in the circumstances prevailing after the 21st September 2014.”
The judge quashed Bexley’s decision (taken on a date unknown but communicated in an email dated 27 October 2014) to reduce O’s care provision below 24 hours per week.
He also issued a mandatory order requiring the council to re-assess the claimant’s community care needs.
However, Mr Justice Roger Ten Haar QC refused a request for a mandatory order requiring Bexley to maintain the provision of 24 hours of care each week to the claimant pending the completion of a further assessment of his community care needs.
Lee Parkhill of 4-5 Gray's Inn Square appeared for the claimant. Annabel Lee of 39 Essex Chambers appeared for Bexley.
