This application for Judicial Review was bought against the defendant Authority in the name of Mr Woods [‘W’] but under the instructions of his mother to seek an order compelling the Authority to carry out a review assessment of W’s needs and provide resources to meet those needs. Her case, set out in a witness statement attached to the claim form was that her son’s mental and physical health had deteriorated, the Local Authority had ignored her requests for a review of their assessment of his needs and that as a consequence both she and W’s grandmother had to provide a substantial amount of support to W daily.
W had suffered from liver failure at the age of 22 requiring a liver transplant, and had a history of severe allergies since childhood; it was unclear as to whether he had also suffered a brain injury. Following his discharge from hospital he moved into his own flat, provided by the local authority, and was provided with a package of care of up to 20 hours a week. However he had resisted this level of intervention and as a consequence had not received this level of provision. Despite his resistance the Local Authority had conducted a number of reviews of their assessment of his needs and made clear to him that this level of provision would be available were he to wish to make use of it.
The Local Authority had previously assessed W as having no psychiatric illness or cognitive impairment and to have capacity to take responsibility for his own actions. During the course of the proceedings the issue arose as to whether W was aware of the proceedings and would wish, if indeed he had capacity to do so, to take such action against the Authority. His solicitors obtained a psychiatric report concluding that he did not have the capacity to litigate or determine whether to accept the level of support offered by the Local Authority and as such the Court was asked to determine whether an application for permission should be stayed until the matter of his capacity could be determined by the Court of Protection or, as was the Authority’s position, the Court should proceed to determine the merits of the claim and its obligations to W as this was unaffected by his capacity to litigate.
The Court rejected the evidence of the psychiatrist in respect of W’s ability to litigate or determine whether to accept the level of care offered to W, setting out that it fell short of that which was required. The Court accepted that W’s behaviour was a cause for concern but felt that before determining the issue of capacity the question of whether he had suffered a brain injury would have to be determined and a full and proper assessment, according to the criteria as set out in the Mental Capacity Act 2005, would need to be completed confirming whether he lacked capacity on those issues at that time on the balance of probabilities.
The evidence before the Court raised significant doubts that W was aware of the proceedings or that he would wish such proceedings to go ahead, given that there did not appear to be any evidence that he had ever complained that the level of care provided by the local authority was insufficient. It was clear that W did not want the level of care offered by the local authority, indeed his mother’s evidence had confirmed this, but it was equally clear that the authority had made clear to W that if he did wish to make use of the 20 hours of care this would be available to him. The Court held that it could not be argued that, by taking into account his wishes and feelings not to receive such a high level of care whilst at the same time reviewing his care plan regularly, engaging with the family and trying to persuade him to accept more care as well as keeping the services open to him in the future, the Local Authority were acting in breach of their statutory duties. As the Court could only intervene by way of Judicial Review if it was clear that the Local authority was acting in breach of its statutory duty, there appeared to the Court to be no point in staying the proceedings until the issue of his capacity were resolved because ultimately the claim would fail in any event.