July 2017 – Care Act Judgement
In a new judgment, the High Court has considered whether a decision by the London Borough of Merton to change the residential provision of an adult (JF) with Autism Spectrum Disorder and severe learning difficulties was lawful.
JF who was 24, had Autistic Spectrum Disorder and severe learning difficulties and required a very high level of support. Since 2012 he had lived in the David Lewis College (the DL College) where he received a range of therapies including speech and language therapy (SALT), physiotherapy, occupational therapy (OT) plus psychiatric input, and also had rapid access to the on-site multi-disciplinary team (MDT), the provision of a Total Communication Environment (TCE) and access to alternative communication methods, in which the staff are trained, such as Picture Exchange Communication System (PECS).
In January 2016, a draft Care Act Needs Assessment was prepared stating that the placement at the DL College was due to terminate at the end of March 2016, that an alternative 52 week residential placement would be identified, and noted that information had been provided to JFs parents about Aspen Lodge (the Lodge) run by Sussex Health Care (SHC). His parents visited the Lodge on 3 February 2016 and concluded that it could not meet his needs. On 4 June 2016, Merton sent JFs parents a Pre-Admission Assessment (the Report) from the Lodge which found that SHC was capable of providing a placement for JF. All these events occurred before the completion of any Care Act Needs Assessment.
On 12 July 2016, Merton confirmed that it was still their intention to move JF and that the Lodge was the placement being considered. The Care Act Needs Assessment was finalised on 14 July 2016 confirming the intention to move JF to Aspen Lodge. Solicitors on his behalf challenged Merton and issued judicial review proceedings. In October 2016.
Anne Whyte QC, sitting as a Deputy High Court Judge, highlights that the Needs Assessment must specify what JFs needs are and it must do so on a rational basis.
Her comments on the assessment process give authorities clear guidance on the duties involved in any Care Act assessment and the consequences for failing to apply them.
If the Assessment failed to assess the impact of need for care and support upon the factors of wellbeing listed in section 1(2) of the Care Act 2014, then it is an unlawful assessment
If it fails to assess the outcomes that an individual wishes to achieve in day-to-day life, and whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes, it is unlawful
If it fails to have regard to the matters specified in regulation 3(2) of the Care and Support (Assessment) Regulations 2014 it is unlawful
If the author fails to have regard to the wishes and preferences of the individual (expressed here to a degree by the Guardians, his parents), then it is unlawful
If it is neither appropriate nor proportionate then it is unlawful
Considering the evidence, Anne Whyte QC finds that, while the Assessment was neither unlawful nor unreasonable in relation to JFs speech, language and OT needs, it failed to comply with duties of the Care Act 2014 in relation to his needs for the on-site MDT and TCE. She notes
Any re-assessment of JFs needs must be based on his current situation and not conducted (as I find it was) from the position that his placement is no longer available to him. It should be noted that this finding is entirely fact-specific in a case where there is a dispute about which decisions were actually made with virtually no evidence in support from the defendant to assist the Court one way or another.
In relation to the decision to terminate JFs placement, Anne Whyte QC rules -
The decision to terminate JFs placement cannot be said to be rational. On one persuasive view, it was made before his needs had been conclusively assessed under the Care Act 2014. On any view, it was made before the preparation of the Care and Support Plan. In those circumstances, it is difficult to see how the decision can have been in compliance with the statutory duties contained in section 1 and 9(4) of the Care Act 2014
Accordingly, Anne Whyte QC allows the appeal and orders that the Care Act Assessment dated 14 July 2016 is quashed and Merton undertake a further assessment of JFs needs in accordance with the provisions of the Care Act 2014 and associated Regulations.
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