R (Perry Clarke) v London Borough of Sutton [2015]

R (Perry Clarke) v London Borough of Sutton [2015]

Keywords: Assessment, withdrawal of services, medical evidence

Perry Clarke, a 27-year-old with severe epilepsy, mental health and behavioural difficulties, had been helped by Enfield to move to a specialist supported living setting in Sutton, becoming a tenant there.

By 2013, he had become “ordinarily resident” in a tenancy where personal care was available to him in unregistered accommodation. So the new council where the tenancy was situated became responsible for the claimant’s care, in place of Enfield, which had funded the move into the supported living setting, and continued to pay, within its discretion, a specialist epilepsy provider registered to provide domiciliary care.

In fact the new council, Sutton, did not carry out an assessment until 5 months after Enfield withdrew its willingness to carry on paying, and when it did, it concluded that the claimant’s care could be provided in a non-specialist manner.

A support plan costed this at £357 per week as compared with the care package Enfield had been content to pay for, costing £1,300 per week. The new council refused to continue to fund the package from the previously contracted provider, and the young man got an interim injunction to prevent cessation of the package.

Evidence from a specialist neurologist and an epilepsy nurse documented active epilepsy, night seizures and risk of status related to stress and any non-compliance with medication, and injury from falls and 1-2 unpredictable tonic clonic seizures a month.

The provider’s evidence about its provision included its bespoke alarm system, staff trained in all emergency medications administration, and highly skilled management of prolonged seizure activity with access to 24 hour support and monitoring, including waking night staff.

During the pre-trial period, the council raised the allocation amount a little and said that Mr Clarke needed “Waking night support for 3 nights per month, in anticipation that your client will have up to 3 seizures a month during the night”.

Instead of accepting that the provider’s business model of charging per week was valid in relation to the need for 24 hour support, the council purported to assess as an appropriate response to the above profile of need, the following TIMED services:

  • Support for 3 hours for 7 days a week to assist him with taking medication, meal preparation, eating/drinking and showering and bathing
  • Support for 3 hours a week to assist him with cleaning, budgeting and managing bills and correspondence.

The council purported to allocate money for these needs at a level of £661 a week as a direct payment. The council did not consult the claimant before producing the updated plan; nor had it explained how it evaluated the claimant’s needs to produce the weekly figure of £661.

The council did not call for its own independent evidence, from any consultant or other experts in the field of epilepsy treatment or care. Although it had available to it the opinions expressed by the claimant’s consultant, GP, epilepsy nurse and care provider it effectively relied on the judgement of a social worker who did not claim to have any medical skills or qualifications.

In evidence, Independence Homes, the provider, said this:

“A waking night’s staff allocation for three nights a month would put Mr C in danger as it is nonsensical to suggest that assistance with medication is only needed some of the time. Additionally, his seizures are not limited to nights. They are whilst sleeping. This puts him at risk of death. So, he could easily (and often does) have a seizure whilst sleeping in the morning or early afternoon. That is why he needs 24 hour care. Sleep in support would not be able to respond to a seizure in time.”

The council maintained that another provider from whom there was no evidence would be able to meet needs, if Mr C moved from his tenancy to another address. That is, the adequacy of the provision at the cost the council wanted to keep the package to, was dependent on the service user agreeing to move HOME to another house, where he would receive services from the cheaper domiciliary provider.

The judge found in favour of the claimant, and quashed the decision of the council, ordering it to re-assess the man’s needs lawfully.

Please read on for the wisdom of the judge:

“It is important to keep in mind that this is a case in which the claimant has been in receipt of these services for a number of years in circumstances in which his medical team and care providers have made it clear that his needs have not decreased. It is to be distinguished from the type of case in which a claimant is seeking services which he has not had in the past.

In my judgment the assessment by the defendant demonstrates a failure to understand and address the claimant’s medical and support needs. This is most apparent in the approach adopted by the defendant to the provision of support to provide three nights waking care a month against a background of medical and other evidence which demonstrates the need for 24 hour care in circumstances in which seizures, including sleep related seizures are unpredictable and cannot be pre-determined. The explanation as to the basis upon which three waking nights care a month are included within the package as offered in the hearing before me simply does not make sense and does not address the needs identified in the reports from the medical and other professionals.

It is also the case that the claimant has a tenancy at his current placement which has been his home for more than four years and there has been no care plan produced from the proposed non-specialist care provider.

…Notwithstanding the high hurdle faced by the claimant [on judicial review], [I find that] that the decision by the defendant failed to give appropriate weight to obviously relevant material and relied excessively on the non-expert view of a social worker in a face of a wealth of evidence to the contrary from appropriately qualified and experienced experts. I find that those opinions have not been given sufficient weight in the decision-making process and that in those circumstances the defendant should re-assess the claimant’s needs and the extent of care that as a consequence is required.

It was accepted that article 8 [the human right to respect for one’s private and family life and one’s home] was engaged. … I am satisfied that the defendant’s decision that the claimant should be expected to move from his home at which he has a tenancy, to a placement of the defendant’s choosing in circumstances in which no care plan has been provided by the proposed non-specialist care provider does amount to an unlawful interference with the claimant’s rights to respect for home and private life.”

Additionally, the failure to involve Mr. Clarke in the decision making process relating to the offer of the non-specialist placement (which would have involved moving from his home of 4 years) contravened his article 8 rights.

ANALYSIS

Although this case relates to a pre-Care Act assessment, it is a salutary reminder that actual medical evidence cannot reasonably be ignored by a social worker’s report without further medical opinion, although the local authority is capable of deciding how to respond to that evidence, and that is not for the medical professional.

The finding of article 8 interference is particularly pertinent given the greater emphasis under the Care Act framework on the involvement of adults in the assessment and care planning process.

This is, of course, exactly the sort of situation which the Care Act seeks to put an end to by extending the ordinary residence “deeming” provisions to supported living tenancies. Under the Care Act, an adult in a similar situation would remain ordinarily resident in the first authority (in this case Enfield) indefinitely and an authority (such as Sutton) which merely happened to have in its area specialist provision where other councils sought to place clients should no longer experience such clients being “dumped” and becoming their responsibility purely as a result of a supported move, made to meet their care needs.

The real problem though of course is the price to be paid: this kind of scenario will give rise, in our view, to clients so frustrated at the delay during negotiations over fees, that they take the law into their own hands. We doubt that councils will be keen to put the all-important words on the Care Plan, the words needed to trigger continuing ordinary residence, until they have found a provider who will take the offered rate. We think that if the accommodation is owned by a private sector landlord, and not a RSL, admission to which is controlled through a system of nomination rights held by the local council, the frustrated client is likely to just GET UP and GO and move in, rather than lose the tenancy – and then be faced with a council who says “You should still be Enfield’s….”

 

We also think this sort of case will lead to people realising that Choice of Accommodation rights apply only to people who are formally placed, (ie contracted for, for all elements of the package including the accommodation, by the council) and not to people who are helped to move to supported living as tenants.

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