O.H. v London Borough of Bexley  EWHC 1843 (Admin)
Keywords: assessment, care planning, reviews, transparency, recording decision making
This was a successful challenge to a local authority’s effective reduction in an adult’s care package during a protracted, disorganised and ill recorded ‘review’ process following transition to adult services.
Following the end of O’s placement at a residential school, he had returned to live with his family. A review had been requested on the grounds that the previous 6 hours per week of respite care (intended for the school holiday periods) was now insufficient and inappropriate to meeting O’s adult needs.
The local authority had undertaken a review and decided to refer O to re-ablement services to assess his independent living skills and advise as to the most appropriate long term provision. In the interim period, they agreed to fund 24-hours per week through a direct payment.
There then ensued a tangled mess of poor communication, poor documenting of decision-making and changes of staff. The facts are complex and specific to the case. However, in the event, the re-ablement assessment was delayed and the funding for the ‘interim’ package ceased. Repeated attempts by O’s family to sort out the mess were met with further confusion and ultimately an account given by the local authority in court which was described in the judgement as “a rewriting of history which analysis does not support”.
The claim succeeded on the grounds of failure to carry out a review and supply a revised care plan; and failure to give reasons for reduction in care.
The judgement strongly criticised the local authority’s failure to make clear decisions, to record those decisions, to seek agreement and provide a care plan to O and his family, and to give clear reasons for its decisions.
“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. 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…”
The local authority’s effective decision to reduce O’s care from the 24-hour per week interim package was quashed and they were ordered to carry out a re-assessment of his needs.
The council tried to argue that complaining would have been an adequate alternative remedy, as to which the judge said this:
Adequate Alternative Remedy?
- It has been somewhat faintly argued before me that an adequate alternative remedy would be a complaint to the chair of the Care Audit panel or by letter to the Defendant.
- There has been nothing in the Defendant’s defence of these proceedings that suggests to me that complaint to the Defendant would have been any remedy whatsoever. A significant difficulty in the way of any alternative remedy would have been the Defendant’s insistence upon a construct of the facts which is unsupported by its own evidence. This is not a case of conflicting evidence between the parties, but rather a rewriting of history which analysis does not support.
Although the facts of this case are somewhat involved, the pattern of disorganised case management, poor communication and confused decision making is common. This case is a strong reminder of the importance of clear recording of assessment decision making and of agreements.
The events with which this case was concerned were governed by the previous legal framework, but a similar case would be highly likely to result in a similar outcome under the Care Act – which is accompanied by detailed statutory guidance which places even greater emphasis on transparency and involvement of the adult and family.