J was a 35 year old man suffering from Asperger’s Syndrome, an autistic spectrum disorder (ASD). Although J had the physical and cognitive ability to carry out the necessary tasks in connection with his personal hygiene, he needed constant prompting “due to his passivity”. Left to his own devices it was unlikely that he would attend to his own personal hygiene needs adequately. J had the necessary mechanical skills to dress and undress himself but needed supervision, prompting and encouragement both to dress appropriately and to change his clothes regularly. He was able to feed himself and prepare simple meals, such as omelettes, beans on toast and sandwiches, but needed to be organised to eat healthily and at structured times.
There was a divergence in medical opinion about J’s capacity to make informed decisions about his future and J’s mother had effectively prevented the Trust from communicating with J on a one-to-one basis, with the result that the Trust did not have the benefit of J’s own personal views about his future. There was, however, agreement between the parties that J could not continue to live in his present accommodation, provided by the charity Spectrum, which was regarded as too isolated. The Trust had suggested two different supported housing units, neither of which were acceptable to J’s mother, who wanted J to be moved into residential care. In November 2001 Spectrum prepared a report suggesting that J should be moved into a residential service and that Spectrum should provide this service. Spectrum’s report was put before the Trust’s residential panel (the Panel), whose primary task was to determine the kind of accommodation required and make a recommendation to the Trust. The panel members said that they knew of other service users with equivalent or more extensive needs who were living successfully in supported housing in the community and felt that a move to residential care might not be justified in J’s case. The Panel recommended that the Trust carry out its own assessment and explore local options. Following that assessment the Panel met again and agreed that J did not meet the criteria for residential care and that his needs could be best met in an appropriate supporting people establishment. It was felt that the advantages of such a placement over residential care were that J’s living skills would be enhanced and his potential maximised; he would be integrated into the local community and have some independence preserved.
In the interim, J’s mother had instructed a solicitor and judicial review proceedings were being threatened. Rather than take a final decision, the Trust decided to seek an independent assessment of J’s needs and instructed a medical expert recommended by the National Autistic Society. The expert’s report concluded that J should have supported living accommodation, ideally with 24 hour staff availability. The Trust then made the challenged decision, proposing that J be housed in a supported unit at Redruth, which consisted of a large house accommodating two tenants on each floor, with a minimum of one member of staff on duty from 7am to11pm and one sleep-in member of staff.
The Trust’s decision was attacked on the basis that (i) the Panel’s decision was flawed because it misunderstood the nature of the residential care proposed by Spectrum and had not sought clarification; (ii) the application of criteria for residential care was flawed in that it implied an unduly restricted reproach to such care and/or because it failed to have regard to J’s need for medication; (iii) the Trust failed to cost the support at Redruth, and neither the panel nor the Trust had regard to the fact that it was likely that Spectrum could arrange continuity of care and thereby minimise the need for change; and (iv) the premises were unsuitable as they contained six persons not four. Further, the fairness of the Panel’s proceedings was attacked, relying on the failure to allow J to be represented, and complaint was made about failure to activate the Trust’s complaints procedure, despite requests from J’s solicitors.
The judge held that the criticism that the Panel had misunderstood the criteria for residential care was misplaced. What was clear from the reasoning of the Panel was that whilst not excluding residential care, they concluded that J’s requirements could be provided in a supported people environment. At the heart of this case was the Trust’s belief that the kind of independence which J would enjoy at Redruth was in his best interest and it was impossible to categorise that belief as irrational. The Trust was quite entitled to choose supported living over residential accommodation and the attack on the irrationality of the decision failed.
The judge further held that fairness did not require the Trust to permit representation at the Panel hearing. In any event there was no doubt that the Panel would have reached the same conclusion. As to the allegation about the failure to evoke the complaints procedure, the Trust was right to take the view that the complaints procedure was not likely to be an effective mechanism for the resolution of this dispute. The Trust was entitled to reach the conclusion that given that the grounds of complaint were identical to the grounds of challenge in the judicial review proceedings, it was entitled to defer consideration of the complaint pending the outcome of these proceedings. Further, it was difficult to see how the investigation of the complaints could be other than an investigation into procedures. Relying on art 8 European Convention on Human Rights added nothing to the facts of this case and the Trust’s decision Trust did not breach art 8. The judge also concluded that alternative dispute resolution would not have resolved the fundamental difficulties between the parties.