Keywords: Care Act; personal Budgets; informal Care; interface between Care Act and the Children and Families Act; no compensation for public law breaches; right to Education
This case concerned a 22-year-old woman with complex and multiple disabilities requiring round-the-clock care.
Her parents, acting on her behalf, had pursued two parallel sets of legal proceedings against the local authority: one about her Educational Placement and her Education, Health and Care Plan (EHCP) via the First Tier Tribunal (FTT); and one about adult social care provision under the Care Act, via Judicial Review.
The FTT had ruled that CP required an EHCP and that her educational placement should be at Fix n’ Kiks (her parents’ preferred placement). Although some matters of detail remained to be determined by the time of the current hearing, these were matters for the FTT.
During the lengthy and complicated run up to the current hearing of the Judicial Review, about adult social care provision, CP’s parents and the local authority continued Alternative Dispute Resolution (ADR) efforts and, by the time of the 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 that was to be delivered via a Direct Payment.
Over the period of dispute, the local authority had repeatedly re-assessed 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, up to a final agreement on £720.67 per week.
One interesting issue arose and was resolved during the ADR process:
The funding of transport to and from the educational placement specified in the EHCP
It has previously been established (see Staffordshire County Council v JM) that a need for transport to and from an educational placement does not constitute a Special Educational Need and, therefore, a local authority is not required to provide or fund such transport as part of the provision required to meet SEN, under the education element of an EHCP.
For young people above compulsory school age, s.508F of the Education Act 1996 (as amended by Children & Families Act 2014) only requires local authorities to provide education related transport for older children and young people “as they consider necessary”.
This leaves transport to and from an educational placement for an older child or young person as potentially a matter for social care rather than educational funding, on the basis of the Care Act domain/outcome “accessing and engaging in work, training, education or volunteering” (Care Act Eligibility Regulations 2015).
In this case, the local authority initially refused to fund transport on the basis that self-funded arrangements could have been made out of benefits (presumably the mobility component of PIP), but subsequently agreed to fund the transport via an additional direct payment. One can only speculate on the local authority’s reasoning, but the actual amount of any PIP mobility component received by CP, the amount of any other transport costs normally incurred by CP for disability related needs; and the actual cost of the transport, would all, presumably, have been relevant factors. Councils if they provide for non-care needs, an example of which is transport, can charge the full cost of that service, as incurred by the council, to the person under the charging provisions, even if it takes their benefits below their minimum income guarantee. One cannot tell from the case whether this happened in this particular case.
The issues which remained to be resolved were historical and were set out as follows:
(a) Was a local authority acting unlawfully by not addressing the social care aspect of special educational provision, or the cost of any special educational needs placement when there is an outstanding appeal to the FTT about those matters?
It was held that it was not unlawful or unreasonable for a local authority to await the tribunal determination before finalising CP’s social care assessment and care plan (comment: – social care being a service of last resort, perhaps).
At the point CP’s parents had requested an EHCP from the local authority, CP was already attending the provision at Fix n’ Kiks. Although the local authority were unwilling (prior to the FTT decision) to fund the cost of CP’s attendance at Fix n’ Kiks (fees of some £25,000 pa), they were, throughout, making some provision for social care during the day, through the provision of a paid carer “who looks after the Claimant for the entirety of her day at Fix n’ Kiks” [para. 56]. The judgement is not explicit on this point, but, presumably, this provision (possibly in combination with an offer of some alternative day placement by way of access to a local authority day centre [whether or not such an offer was actually made was a matter of factual dispute which was not resolved]) would have been adequate to meet the assessed eligible social care needs. Consequently, the local authority was not under an obligation to fund CP’s preferred placement at Fix n’ Kiks until the FTT had resolved the issue of whether CP’s needs were educational needs and how they should be met.
(b) Had the local authority lawfully discharged its duties towards CP under the Care Act 2014 and the Children and Families Act 2014 in respect of the 2016 and 2017 care plans (excluding the aspects of the revised plan, which was finally agreed)?
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 and set out the local authority’s rationale in arriving at that figure.
The local authority had argued that a personal budget could not have been set out at that stage because the dispute over the placement at Fix n’ Kiks resulted in uncertainty about the personal budget figure and this uncertainty prevented the local authority from setting out a transparent personal budget.
This argument was rejected. Provision was still being made for care and support costs during the day (when CP was attendingFix n’Kiks), even though this did not include the fee for that placement) as well as other aspects of professional social care to supplement that which was provided by the family. A transparent personal budget setting out those costs and the rationale behind them could and should have been included in the earlier care plans.HHJ Wood (QC) was in no doubt that:
“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.” [para.94]
HHJ Wood (QC) acknowledged that:
“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, he viewed as sufficient to fulfil the local authority’s duty, the informal carer’s involvement in the assessment (fulfilling the duty in s.25 Care Act) taken together with the inclusion within the assessment documentation of the following statement:
“…[CP’s mother and principal carer)] other is also aware that if her circumstances change she will be entitled to further assessment”.
He went on to indicate that, even if a carer believed that an assessment was overly reliant on informal care input there were steps which could be taken short of judicial review to resolve the disagreement and concluded that rulings of unlawfulness in relation to previous assessments could subject them to a disproportionate level of scrutiny, concluding that:
“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]
…concluding that the local authority had acted lawfully, save in the limited respect of the lack of transparent personal budgets in the earlier care plans.
(c) If it has not, did that entitle this Claimant to pursue a challenge by way of judicial review, bearing in mind that there is no present objection to the care plan/direct payment, and no issue going forward which the court is being asked to determine?
HHJ Wood (QC) concluded that the lawfulness of Care Plans prior to the finally agreed Care Plan was irrelevant for the purposes of Judicial Review, once a lawful Care Plan had been agreed:
“Whether or not the local authority has acted unlawfully in relation to past matters is irrelevant for the purposes of judicial review,unless that unlawfulness has continuing effect on or consequence for the Claimant’s rights and entitlements. I will address the question of restitution and other aspects of damages for potential breaches below, but it seems to me that even if past unlawfulness is established in relation to the way in which the local authority drew up the support plans, and in particular identified (or failed to identify) the personal budget, that is a failure of form, rather than substance, because it does not impact directly on the Claimant if it is subsequently corrected.” [para.95]
(d) Had there been a breach of section 6 Human Rights Act derived from Article 2 of the First Protocol to the European Convention on Human Rights (A2P1)which provided:
“No person shall be denied the right to education”?
In concluding that there was not, HHJ Wood (QC) noted a legal consensus that the right to education was relatively weak and certainly not an absolute right. The dispute had been about the cost, appropriateness and suitability of a particular educational placement and the local authority had other facilities and placements available, whether or not these were actively offered or rejected.
(e) If the Claimant was entitled to declaratory relief in relation to any alleged unlawfulness, did this give rise to a claim to monetary compensation by restitution or otherwise?
As a result of the rulings detailed above, the issue barely arose, since only a very limited finding of unlawfulness had been made. However, HHJ Wood (QC) considered whether there would have been any basis for monetary compensation if a claim of unlawfulness had been successful. He considered that the only possible basis would be on the private law basis of unjust enrichment. Richards v Worcestershire County Council was distinguished on the basis of the particular facts of that case (which included the strength of the aftercare duty under s.117); and that it established only that a private law claim should not be struck out. It was also noted that the judgement in Richardswas the subject of a further appeal.
HHJ Wood (QC) held that public bodies cannot readily be said to have been unjustly enriched by means of mistakes or failures in administering funds under statutory duties and functions. He continued:
“In many instances, if the failure is corrected, provision can be made for retrospective payment of entitlement. Otherwise, the reality is that resources are merely reallocated perhaps to another individual or group of individuals who have a statutory entitlement. In my judgment, it is illogical that a public authority in such circumstances should be regarded as “unjustly enriched” and it would be contrary to public policy that such a claim is sustainable.” [para. 115]
This case touches on a wide range of issues. The key findings are:
- A local authority does not have to put in place social care provision to meet elements of asserted social care needs which are the subject of an appeal to the FTT on the basis of an EHCP (as “deemed” educational needs – s.21(5) CFA), but can wait for the tribunal to reach a decision.
- If the needs are deemed by the FTT to be educational, then the FTT ruling will determine how they must be met.
- If not, social care needs remain a matter to be determined by the local authority. However, the current pilot (running from March 2018 for 2 years) enables the FTT to make non-binding recommendations on the health and social care elements of an EHCP. The DfE has said (at page 28 of the ‘Review of Arrangements for Disagreement – (SEND) Research report, March 2017) that:
‘While the First-tier Tribunal’s recommendations are non-binding for health and social care partners, we would generally expect that recommendations are followed. If recommendations are not followed, families would be able to complain to an Ombudsman or in exceptional circumstances, seek to have the decision judicially reviewed.’
It remains to be seen how local authorities will react to such recommendations. It seems unlikely that non-binding Tribunal recommendations would have much influence on the fundamental issues of social care eligibility or the personal budget. However, they may, perhaps, be influential where there has been a reluctance to carry out a social care assessment at all or failures to obtain reports from relevant health or social care professionals. Such recommendations may also be influential where there are disagreements between commissioning bodies on the division of funding for a placement between education, health and social care.
- A personal budget must be specified in a care plan and must be transparent.
- 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.
- 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.
- An informal carer cannot be obliged to meet the needs of the person they care for.
- However, where an informal carer is willing to meet some needs and has been properly involved in the assessment, willingness to undertake further assessment should the circumstances change is sufficient to fulfil Care Act statutory duties.
- A claim for judicial review can only succeed on the basis of current unlawfulness not past unlawfulness which has been corrected.
- Failure to fund an educational placement does not breach the A2P1 right to education in circumstances where the person was, in fact, attending the educational placement and alternative education was potentially available.
- In general, despite Richards, monetary/damages claims or claims in restitution for public law breaches are not likely to find favour with the judiciary. They may do so in the form of compensation recommendations from the Local Government Ombudsman to remedy the injustice of going without one’s entitlement.
The conclusion reached in this case on the issue of informal care perhaps rests on the reality of the eventual agreement between the parties in this case, a process which saw substantial increases (a near doubling) in the provision offered by the local authority. However, it raises questions which are likely to be relevant in many other current, future and potential cases, given the pressures on council funding and the understandable focus of councils on maximising informal care provision.
Of widest concern, the judgement appears to interpret the Care Act as merely requiring a vague reference to the possibility of further assessment in the event of a change in circumstances, by way of setting out an adult’s needs and the provision required to meet them disregarding care provided by an informal carer until the care planning stage. This appears to be a far cry from the “carer neutral” assessment which the Care Act was heralded as introducing. But then again, that vision of how it should work arose only from the guidance, and not the Act itself.
The judgment refers to paragraph 10.26 of the Care Act guidance, which states: “Local authorities are not under a duty to meet any needs that are being met by a carer. The local authority must identify, during the assessment process, those needs which are being met by a carer at that time, and determine whether those needs would be eligible. But any eligible needs met by a carer are not required to be met by the local authority, for so long as the carer continues to do so. The local authority should record in the care and support plan which needs are being met by a carer, and should consider putting in place plans to respond to any breakdown in the caring relationship.”
However, paragraph 6.15 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.”
It is unfortunate that this paragraph was not specifically considered in this case. It is not entirely clear from the judgement to what extent the finally agreed assessment and care plan actually set out the full extent of CP’s needs without regard to the informal supportor detailing what the agreed element of informal input was finally settled to be.
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: http://www.bailii.org/ew/cases/EWHC/Admin/2018/220.html