In this case a challenge was made about the provision for a 22-year-old woman, CP, with complex and multiple disabilities requiring round-the-clock care.
CP’s parents and the local authority were also engaged in an FTT appeal about educational provision which had a bearing on what else was or might be needed. They continued Alternative Dispute Resolution (ADR) efforts during that appeal and, by the time of the judicial review hearing, had essentially reached agreement about the degree to which CP’s social care needs would be met by informal care from her mother, and the level of that part of CP’s Personal Budget to be delivered via a Direct Payment.
Over the period of dispute, the local authority had repeatedly reassessed CP under the Care Act and issued new proposed care plans which increased the proposed Direct Payment from £387.50 per week via £519.70 per week to a final agreement on £720.67 per week.
Transparency of the Personal Budget
Several of the earlier care plans had failed to state a personal budget at all and none had set out any breakdown of the figure.
In line with the pre-Care Act case law (R (Savva) v Kensington & Chelsea  and KM v Cambridgeshire ), HHJ Wood (QC) took the view that the duty in S.26 Care Act to specify the personal budget for the adult required a transparent figure which set out how the persons’ needs could actually be met by various elements within it.
“93. It is important to understand the rationale of the personal budget which is available to the individual being supported and his/her carers. It seems to me that this is clear from paragraph 11.3 of the statutory guidance. The adult with eligible needs and those providing voluntary care should have a good understanding of the extent to which support will be provided by the local authority in respect of both those services which are provided directly by specialists (and paid for by the local authority) and those which will be funded by way of direct payment. Of course, because voluntary care figures in most assessments, and it is this aspect in which the family will be interested, if the personal budget covers the total cost of meeting the eligible needs, thus including the direct payments, that element to be provided voluntarily will be easily discernible.
94. The duty is a clear one derived from section 26 of CA 2014, and any failure to provide a transparent budget in a care and support plan represents a prima facie breach of that duty which in my judgment would be susceptible to legal challenge by way of judicial review, assuming that it was otherwise uncorrected. The Claimant provides a compelling argument in respect of the earlier plans which were defective in providing this transparency.
“It is also clear that an adult’s family carer is under no obligation to meet the eligible needs of the adult and necessarily any plan must be contingent on such care being withdrawn, or the local authority being made aware that the carer is not in a position to cope.” [Para. 97]
However, the judge went on to hint that, even if a carer believed that an assessment was overly reliant on informal care input there were steps which could (and maybe should) be taken short of judicial review to resolve the disagreement. (Our comment would be that perhaps the judge believed that complaints actually sometimes lead to a change in professional judgement; does anyone out there have any evidence of that, please?)
He did not say that one had to make a complaint, however, before using judicial review:
…“unlawfulness could only be identified in circumstances where there had been a refusal to review in response to a complaint, or insistence on family care in the light of clear evidence that the family was unwilling, or that there had been an irrationally low level of care identified on the assessment.” [para. 102]
In relation to what should go into a s25 Care Plan, paragraph 6.15 of the Guidance appears to have been overlooked and not specifically considered during the hearing.
Paragraph 6.15 spells out in greater detail the relationship of informal care provision to the process of assessment:
“During the assessment, local authorities must consider all of the adult’s care and support needs, regardless of any support being provided by a carer.
…Where the adult has a carer, information on the care that they are providing can be captured during assessment, but it must not influence the eligibility determination.
…After the eligibility determination has been reached, if the needs are eligible or the local authority otherwise intends to meet them, the care which a carer is providing can be taken into account during the care and support planning stage. The local authority is not required to meet any needs which are being met by a carer who is willing and able to do so, but it should record where that is the case. This ensures that the entirety of the adult’s needs are identified and the local authority can respond appropriately if the carer feels unable or unwilling to carry out some or all of the caring they were previously providing.”
The judgment should also be taken as a reminder of the need to engage in extensive ADR efforts prior to and during the process of Judicial Review (see Cowl v Plymouth City Council ), especially where, as in this case, the public body appears willing to review or reassess the situation.
That said, one wonders whether such substantial increases in CP’s Direct Payment would have been forthcoming without the existence of the Judicial Review proceedings. It should also be noted that, nevertheless, Judicial Review remains the appropriate route where the claim raises a point of law of general importance or where the public body involved fails to give clear decisions and/or reasons (O.H. v London Borough of Bexley ).
Full text at: CP v North East Lincs