Davey, R (on the application of) v Oxfordshire County Council & Ors, Court of Appeal - Civil Division, September 01, 2017, [2017] EWCA Civ 1308

Issuing Organization:Civil Division
Actores:Davey, R (on the application of) v Oxfordshire County Council & Ors
Resolution Date:September 01, 2017
 
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Case No: C1/2017/1043/QBACF

Neutral Citation Number: [2017] EWCA Civ 1308

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

MR JUSTICE MORRIS

CO/2491/2016

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 1 September 2017

Before :

LORD JUSTICE McFARLANE

LORD JUSTICE BEAN

and

LADY JUSTICE THIRLWALL

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Between :

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Jamie Burton (instructed by Irwin Mitchell LLP) for the Claimant

Jonathan Auburn and Zoe Gannon (instructed by Angela Mills, Principal Solicitor, Oxfordshire County Council) for the Defendant

Victoria Butler-Cole (instructed by The Equality and Human Rights Commission) for the First Intervener (written submissions only)

David Wolfe QC (instructed by Louise Whitfield, Deighton Pierce Glynn) for the Second Intervener

Hearing date: 17 August 2017

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JUDGMENTLord Justice Bean

Introduction

1. Luke Davey (``the Claimant'') seeks judicial review of the decision of Oxfordshire County Council (``the Defendant'') made in or around October 2015 to reduce the Claimant's personal budget and to revise his care and support plan pursuant to the Care Act 2014 (``the Act''). The effect of these decisions was to set the personal budget for the Claimant's care at £950 per week with effect from 1 May 2016, a substantial reduction from his previous budget of £1651 per week. Morris J, in a judgment given on 27 February 2017 [2017] EWHC 354 (Admin), dismissed the claim. Mr Davey appeals to this court. We were told that this is the first case in which the Act has been considered in this court.

The facts

2. The Claimant, now aged 41, is, and has been since shortly after birth, severely disabled with significant needs for care and support. He has quadriplegic cerebral palsy, contractures of hips and knees, hip dislocation, very little trunk control, stretched bowel and hypersensitivity to touch. He is not able to bear weight or mobilise and is therefore dependent on a wheelchair. He has severe visual impairment and is registered blind, although he has some, low vision, sight. He requires assistance with all of his intimate personal care needs (including personal hygiene and toileting), all domiciliary tasks and the activities of daily living, including accessing the community. In the past he has been recorded as having depression, persistent low mood and anxiety.

3. The Claimant receives strong support from his family, led by his mother Jasmine Davey, who is now aged 75. His sister Rachel, his sister in law, Sue Davey and his father, Tony Davey are also active as carers. Despite his substantial disabilities, the Claimant leads an active and engaged life. This is a tribute not only to his own determination but to the tremendous efforts of his mother and his devoted team of carers.

4. The Defendant is the local authority with responsibility for the area where the Claimant resides. Key personnel in its Adult Social Care Team are Nicki Lovelock, a social worker with 26 years' experience, with particular expertise in disability and adult mental health; Julie Collins, an occupational therapist; and Jill Last, the OT Practice Supervisor and Ms Collins' line manager.

5. In 1999, at the age of 21, the Claimant moved out of his parents' house and into a purpose built two-bedroom adapted bungalow in Burcot, Abingdon, Oxfordshire in a complex designed for disabled people. Ever since then, he has had largely the same team of seven carers: these include his two main carers - Sue Davey and Cheryl Hennessey, (who have been paid at a higher rate than others). Apart from his mother, the carers, including his family members, are all paid.

Care and funding arrangements in the past

6. For many years, the Claimant has received adult social care support, under relevant legislation, based on a needs assessment and a care plan. Until June 2015 this care was funded in a total amount of £1651 per week, provided in part by the Defendant, in part by the Independent Living Fund (``ILF'') in an amount of about £730, in part by the NHS and by a small means tested contribution from the Claimant.

7. By January 2015 it had been announced that the ILF was to close down. It did so in June 2015, since then the funding of the Claimant's care and support has been provided by the Defendant Council with a small means tested contribution from the Claimant. The Council first indicated that it would reduce funding to £903 per week, but revised this and instead (after a short period of tapering) reduced the sum paid to £950 per week with effect from 1 May 2016. The Claimant's position is that his needs cannot be met by such a reduced amount.

8. By July 2015 the Claimant was aware of the Defendant's proposed revised personal budget. Following objections from the Claimant, in September and October 2015 the Defendant carried out further updated assessments of needs and produced a revised care plan and personal budget, essentially confirming the weekly sum of £950. After further pre-action correspondence, proceedings were issued in May 2016.

The Claimant's case in outline

9. The Claimant contends that the reduction to £950 per week is in breach of the Defendant's obligations under the Care Act 2014 and/or Wednesbury unreasonable. Two underlying reasons were given for the Defendant's decision to reduce the personal budget. First, the Claimant could in the Council's view spend more time alone without the benefit of a personal assistant (PA) being present. Secondly, the Claimant could and should reduce the amount which he pays to his PAs. The Claimant says that these changes pose two risks to his wellbeing: first, anxiety arising from having to spend unwanted time alone and, secondly, the risk of losing his established care team of 18 years. These concerns are recorded throughout the history of the assessments. The Claimant and his family believe that the Defendant first set a budget figure and then assessed the Claimant's needs so as to fit that budget. The Defendant denies this.

10. By the time of the hearing before the judge the Claimant had agreed to spend time alone for four hours a day (2x2 hours), and accepted certain reductions in the terms and conditions of the PAs. On this basis, the Claimant has been prepared to accept a reduction to £1224.25 per week.

ILF Support Plan: 2014

11. An Independent Living Fund Support Plan dated around 28 January 2014 set out the Claimant's current care and support needs and current costs and what would happen once the ILF closed. It expressly disavowed setting out the support from July 2015, as that would be the local authority's responsibility. It recorded that the Claimant had a history of depression and anxiety; that the potential closure of the ILF was a particular concern for him; and that 24 hour support was needed. In the ``outcomes'' section, what was important for the Claimant, was stated to be: independence, ability to make his own decisions and basic daily functions; social interaction with his different carers. The plan emphasised the importance of his existing team of carers. Also important was being able to attend functions of all sorts and being able to interact with his carers. The total cost of support was stated to be £1739.15. Of this, his personal contribution was calculated at £99.05. The ILF would provide £737.10 and the Defendant would provide £903.

12. On 14 December 2014, the Defendant wrote to all users who were in receipt of funding from the ILF, stating that the Defendant would be assessing the level of provision needed to meet service users' needs and advising that some individuals might experience a reduction in their total funding. This was because some service users had obtained ILF funding to provide for additional support beyond that needed to meet their lawfully assessed needs under the 2014 Act.

Assessments during 2015

13. On 27 January 2015, Ms Lovelock conducted a Social Care Assessment entitled ``Overview Assessment'' (``the January Assessment''). This was in a standard form with pre-printed questions, and answers completed, and divided into four sections. In section 1: General, it is recorded that the Claimant's preference was to use different carers throughout the day ``rather than live in care''. Then in answer to a question as to the three most important things in his life the Claimant answered:

``It is important to me that I continue to have the same carers as they are my community.''; ``Familiarity of my team who knows me well'' and ``My family''

14. In ``Section 2: Functional Activities of Daily Living Assessment'', information is recorded about the Claimant's toileting needs and that he could become very anxious when he needs the toilet. In relation to social activities, it is recorded that he enjoys going out for meals, the company of his carers, that most of the team of PAs have worked for him for up to 17 years and he attends the PHAB (Physically Handicapped and Able Bodied) club in Oxford.

15. Under question 23 ``Safety and Risk'', and in answer to a question as to the support needed during the day, it is recorded:

``Luke needs care 24 hours a day owing to physical and visual impairments. He prefers not to have any care for 2 hours on Tuesday afternoons, as he likes to spend some time on his own. He has declined to consider doing this every day (though he has done so before) which would reduce the costs of his PAs.

Luke and his mother feel that Assistive Technology would not assist him. Luke has said that he does not wish to have a live-in carer although this would be a more affordable option.''

As regards emergencies, it is stated:

``When alone for 2 hours Luke has access to a large button telephone which he can use to summon help. He has needed to do this once only, according to his mother'':

``Care is required to be available 24 hours a day. This is currently being provided by a team of PAs. A live-in carer would be able to meet all of Luke's needs but he feels...

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