Best interests and mental capacity
Nicholas Endean | 04.05.2018
06.12.2017 Nicholas Endean
The Court of Appeal have recently ruled on a particularly challenging and important Care Act case where the Claimant’s care package had been drastically reduced by the Defendant Local Authority.
As the first Judicial Review of the Care Act 2014 before the Court of Appeal, its decision was widely anticipated by practitioners and service users alike. Unfortunately for the Claimant, the appeal was dismissed and the reduction implemented by the Local Authority was deemed to be lawful.
R (Davey) v Oxfordshire County Council  EWCA Civ 1308
Mr Davey suffered from quadriplegic cerebral palsy and had required care in some manner throughout his life. At the point of the hearing he was 41 years old. He lived in a purpose built adapted house in Oxfordshire designed for disabled people.
Mr Davey benefited up until June 2015 with funding through the Independent Living Fund for his care. This amounted to £1,651 per week. After this date, the scheme ended with responsibility falling to the local authority to carry out annual reviews and to settle a personal budget to be managed through direct payments.
It was upon this review that Oxfordshire indicated that based on their assessment; his personal budget would fall to £950 per week from 1 May 2016. This was a reduction by the council of £701 per week or £36,452 per annum in Mr Davey’s care package.
Mr Davey judicially reviewed this decision on the basis the reduction was unlawful under the Care Act. He submitted that his well-being would be compromised without the level of support from his PA’s that he was used to and £950 per week would not be able to fund the level of care that he needed to meet his needs. He also raised legal challenges on two other grounds relating to the reasonableness of pay for the PA’s and the reduction on his ability to engage in social activities.
The Local Authority took a different view stating that Mr Davey did not require the use of his PA’s as much as he had been used to and that emergency care could be provided through a telecom system if necessary. Also there would be a positive impact upon him if he was less reliant on carers and able to engage more independently.
Mr Davey was very concerned that he would not be able to keep his established care team of 18 years together and sought to challenge the decision arguing it was irrational and unlawful. Mr Davey agreed that at a minimum, his needs could be met at £1,224.25 per week but any less would be unlawful.
The Judge held at first instance that the Local Authority had conducted a thorough and honest review of Mr Davey’s needs through the Care Act assessment process. There was no evidence that his PA team would break up and that Mr Davey’s views had been considered as part of the process. His challenge was therefore dismissed.
The appeal judges unanimously dismissed the appeal citing that the first instance judge was entitled to come to the view that he did and that the decision reached by the council to reduce the care package had come at the end of a lawful process.
This makes for an interesting case and the full judgment provides an insight into how Judicial Reviews of Care Act assessments will be considered by the Appeal Courts. It does inevitably also raise questions about how much of a reduction would be considered unreasonable. The reduction here certainly was significant, but what must be remembered that cases of this nature will always be determined on the facts.
A reduction of £701 per week may be lawful (and potentially manageable) for Mr Davey, but that will not necessarily be the case for a different service user. Where the care provision goes, how many hours are used and the level of care needed will always be the determining factors when a reduction of care decision has been made.
It could well be said that even a modest reduction of £50 per week could have a catastrophic impact upon someone’s life if it were implemented. This case does not give Local Authorities a precedent to reduce everyone’s care package up to £701 without challenge.
Each case will be decided upon its own facts and merits.