CASCAIDr’s CEO has long suggested during training sessions that mincing towards meanness is much harder to challenge, even with use of public law principles, in the context of adults’ social care or CHC services, than making a giant cut overnight.

If commissioners aren’t care aware, and care managers and reviewers are risk averse or incentivised to make immediate savings, of course too MUCH risk or too LITTLE risk will be factored into any programme of cuts.

Such is the impact of no longer training social work students in how LAW actually WORKS, or front line public sector staff and senior managers in “difficult conversations”, it is suggested.

However, in a recent case, Lewisham Council has shown that massive cuts can be justified, as long as they are implemented slowly and the impact is genuinely monitored.

That, we have to say, is defensible social work, rationing public money properly, but it is not the modern way.

Making a judgment as to a Court’s reaction, in cases like this, is one of the reasons why CASCAIDr exists. This would not have been a case that we would have been likely to lend our support, all the way to court, although just as in the pre-Act Cambridgeshire, and post-Act Oxfordshire cases it seems that it was the proceedings that succeeded in MAKING the council do the job properly in the end. What a waste of resource, is all we can say.

In the 2018 ‘VI’ case, R (VI) v Lewisham LBC, the claimant was a long-term recipient of social care services – firstly, commissioned services and then through direct payments.

She was a 55-year-old woman with muscular dystrophy, who was bed- and wheelchair-bound and who required carer support for all personal care. She had reduced dexterity in her hands. She was continent, and used to wearing pads during the day and night if no carers were expected, although she did not like having to do so and the pads sometimes overflowed.

She’d been used to having 104 hours a week for a number of years including a specification for double handed care 3 times a day and night time care through a sitting service. Then a hoist was fitted, but no change was made; the council very fairly openly admitted to its failure to review being the reason the planned cut was not made when first assessed for.

En route to the final plan for the cut, the council had said this in writing, rather unfortunately:

“Lewisham is unable to provide an overnight service to enable you to continue to be supported to the toilet during the night. Lewisham has limited resources and that requires that we ensure we make the best use of the resources for all clients. Lewisham social services believe that pads are the solution to managing incontinence over the night time period and that is an approach used for all clients with similar needs. It has therefore been recommended that your night time need should be managed through the use of incontinence pads. The use of pads is considered a practical and appropriate solution to your night-time toileting needs.”

The judge agreed that a decision in the terms of that sort of communication could not amount to an assessment complying with the Act, because it was a generic decision relating to the management of incontinence rather than one reflecting a consideration of the Claimant’s individual needs and well-being.

[We agree and often use this argument: that’s a policy change about what is appropriate or not in relation to the duty to meet needs and we don’t see why it should not have been consulted over. But in light of the McDonald case, if it HAD BEEN CONSULTED OVER PROPERLY, it cannot be said that the policy was automatically unlawful, however – it all depends. What is clear is that it would not be lawful if it had been automatically applied – that would have been a fetter of discretion.]

By 2016, Lewisham had completed a care and support plan that reduced the Claimant’s hours to 52 hours a week.

In practice, though, even now, no reduction was implemented, apparently due to administrative oversight and the Claimant continued to receive direct payments at the rate of 104 care hours a week.

[It is perhaps no wonder that people despair of social care ever running efficiently with cases such as these!]

What happened eventually?

By 2018, the proposed cut was going to take the care down to 40 hours a week, mostly by removing the night time hours allocated within the 104 hours.

The claimant alleged that Lewisham’s latest review conclusion that her needs for care and support could be met through a reduction of over 50% in her carer hours from what it had once been set at, was irrational.

It was said that since her condition was degenerative, cogent reasons were therefore required for concluding that her care needs had reduced from the previously assessed level.

The basis on which the Defendant asserted that the Claimant’s needs had hitherto been ‘over-provided for’, was ‘flawed’, it was asserted. Over- generosity can be a justification for a cut, of course, because it’s all coming out of public money, and all the council need ever do is to meet need appropriately, not aspirationally!

The Claimant also contended that failure to co-operate with NHS services, particularly over occupational therapy and physiotherapy, had flawed the assessment of the Claimant’s needs and ignored the best way to prevent care needs arising in the future.

An MDT meeting had ultimately been convened at the Claimant’s home, attended by the Claimant, two social workers and two district nurses.Ms Dawson’s typed note of the “MDT Outcome” stated as follows:

“Trial 6 week period agreed for reduction of care package, removing the night time care of 7 hours for incontinence support, pad changing and body turning with close monitoring from DN [district nurse] x2 weekly.

Exact plan to be confirmed and agreed alongside start date with DN and [the Claimant]. [Direct payments] team to be informed of change to care plan.

To be reviewed as ongoing via DN assessments/visits.”

This plan was to be reviewed at 6 weeks by the social worker, with district nurse visits twice a week in the meantime to monitor and record.

In August the council completed a care and support plan for the Claimant including a reduced care package of 40 hours a week, based on four one-hour single handed personal care visits a day (3 visits on Sunday) (27 hours in total), 7 hours a week meal preparation, 3 hours weekly domestic and shopping support and 3 hours weekly community support.

The Claimant made the point that the 22 August 2017 plan and 23 August 2017 letter flowed from the generic June 2016 decision and did not attempt to assess the impact on the Claimant’s well-being of the removal of her night time care.

But the social worker’s evidence was as follows:

i) The incontinence service had recommended the use of more robust pads in 2017, which were supplied.

ii) The Claimant had not sought medical advice about faecal difficulties, and there was no evidence of her having raised this with social workers or the occupational therapy service. There was no sign of any link between such episodes as had occurred and the reduction in the care plan.

iii) There was no evidence of pressure sores occurring since the care plan reduction. Further, “District Nurses have been very closely involved, their professional opinions have been sought in order to be confident that there are no significant risks of pressure sores, that toileting can be managed through use of pads and a specialised mattress used to address the issue of positioning and assist pain management, and that the Claimant is not being placed in unnecessary risk.”

In March 2018 the Defendant finalised the care needs assessment and sent it to the Claimant.

[i] “[The Claimant] was formally diagnosed with Muscular Dystrophy … in 2007. … It was reported that there is ‘no treatment or cure … and the condition is slow progress … won’t be ambulant … will need a wheelchair.”

[So the fact of degeneration was clearly acknowledged as relevant to considering what was needed.]

[ii] “[The Claimant] was assessed in June 2016 as she was receiving a 104 hours weekly care package. This identified double handed care. However, through further assessment and review discussion [the Claimant] confirmed that she did not use the service as double handed as it was not needed and instead had used the hours to implement a night time carer service seven days a week.

The view presented by the DNs at the MDT meeting was that given [the Claimant’s] equipment and level of mobility, removing her night care allocation would not put her at significant risk of developing pressure sores.

To manage risk, we agreed that the DNs would visit twice weekly to monitor pressure areas. This was also to manage [the Claimant’s] understandable anxiety. Currently the district nurses continue to visit [the Claimant] twice weekly. All their reports state that her skin is intact and no evidence of pressure sores.”

Lewisham therefore contended that the Claimant’s stance amounted to little more than a disagreement with the outcome of the assessment. A careful reading of the assessment demonstrates that it:

• was completed with multidisciplinary input from both health and social work professionals;

• fully involved and consulted the Claimant;

• had clear regard to the factors as required by section 9(4);

• complied with the provisions of the Act, regulations and guidance; and

• took into account all material considerations.

Lewisham also contended that the woman had failed meaningfully to consider any alternative more suitable avenue for dispute resolution, including ADR or by exhausting the Defendant’s own complaints process and, if necessary, escalating any complaint to the Local Government and Social Care Ombudsman.

[That submission was not taken up by the judge, and we think that that is a further indication that the courts will not often be persuaded to regard arguable cases as able to be resolved by way of a different jurisdiction that does not encompass matters of illegality.]

The judge agreed that certain of the statements in the assessment are expressed in a somewhat conclusory way:

[x] (“Joanne explained that there is no evidence suggesting that there is a need for this additional intervention“)

[xx] (“It was explained that this is not based on assessed need and therefore not approved“).

“Those passages might be said to lend support to the Claimant’s submission that the decision-maker has taken the 2016 and 2017 decisions as read, without actually performing an assessment of the Claimant’s needs and the impact on her of the reduction in care.”

The point might also be made that passage [ii], referring to the June 2016 decision, appears to be erroneous in assuming that the Claimant herself had used spare care hours to implement night care, whereas in fact the 2011 and 2014 assessment both concluded that the Claimant required night care.”

“Viewing the assessment in the round, I consider that the decision-maker has not simply adopted the 2016 and 2017 decisions but has had regard to all the current circumstances in considering the Claimant’s needs and well-being.”

“The assessment acknowledges that the Claimant’s condition is degenerative (passage [i]). It notes that the trial removal of night care in August 2017 followed consultation with district nurses. It considers the evidence as it currently stands in relation to the Claimant’s toileting needs, including the series of reports from the district nursing team referred to in passage [xiv] reporting an absence of pressure sores and intact skin.”

“The Defendant has also recognised that this is a matter which needs to be kept under careful review, and has continued to do so with weekly district nurse visits and periodic social worker visits.”

“The fact that the Claimant complained of wet leggings after outings on Sundays of approximately 5-5½ hours highlights the need for close monitoring of her needs at night during a longer period.”

“However, viewing the assessment as a whole it is not possible in my judgment to conclude that the Defendant’s approach has been irrational or that it has failed to have regard to the prescribed factors including the Claimant’s individual well-being.”

The judge said, with regard to pain, that it was noticeable that physical and mental health, of which pain relief and pain management would form part, were not included in the list of specified outcomes forming part of the eligibility criteria for Care Act purposes (see § 56 above). However, he said, “physical and mental health and emotional well-being” is one of the well-being factors referred to in section 1(2) of the Act and counsel for the Defendant was right in my view to accept that pain is therefore a relevant consideration when taking a decision under the Act.”

[CASCAIDr would comment here that the very definition of achieving the domains in the criteria includes reference to achieving but only with significant pain, anxiety or distress, or endangerment to self or others, or a much longer time to achieve the task, so it is ridiculous to suggest that such things are not part and parcel of task of considering the best value way of meeting ‘outcomes’!]

Fortunately the judge went on to say this: “It would follow that when deciding how to meet an eligible need, a local authority should take into account the fact (if the case) that one way of meeting the need is more likely to avoid or alleviate pain than an alternative way of meeting the eligible need.”

“I agree with the Defendant that the assessment gave holistic consideration to the well-being factors, including the impact of the revised care package upon the Claimant over the period of six months since it was first introduced in August 2017.

The Defendant has monitored (and continues to monitor) whether the Claimant has any additional eligible care needs that may have arisen as a result.

There is no or very limited evidence to support the Claimant’s assertion that her mental health and physical well-being have significantly deteriorated to the extent that the care package needs to change.

Neither the district nurses nor the evidence from the Claimant’s GP has given reason to believe that the removal of night time care has led to deterioration in the Claimant’s physical or mental well-being, whether in the form of pressure sores, increased pain or mental health problems.

The assessment does assess the Claimant’s eligible needs against the specified outcomes of relevance to the Claimant’s particular circumstances. The materials available, including the Claimant’s own evidence, do not identify accessing and engaging in work, training, education or volunteering as being of day-to-day relevance to the Claimant.

That position may change, but as matters stand I do not consider the assessment to have been unlawful on this ground.”

On the role of the target or general duty concerning integration with health services in the Care Act: the judge said this:

“I do not consider that the general duty in section 3(1) of the Act, or the associated provisions of the guidance, impose an absolute requirement to have specific health (including in this case physiotherapy) input during the course of making an assessment of care needs.

In the present case the assessment noted that an occupational therapy assessment had been completed on 9 September 2017, and that the Claimant had a profiling bed, mobile commode, powered chair and agreement from management for provision of a seating matters chair (see passage [vii]).

It specifically considered the Claimant’s complaint about having insufficient care hours in order to attend seated exercise groups and concluded that the current hours should be sufficient ([xviii]).”

If that assessment were to turn out to be incorrect or doubtful, then a reassessment may well be required, but I do not consider it possible to conclude that the Defendant’s decision in its March 2018 was unlawful as a result of failing to take account of needs for physiotherapy services.”

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