This case involved two adult men (A and B), aged 25 and 32, with severe physical and learning disabilities who lived with their mother (X).
A and B had extensive night time care needs. They needed to be repositioned numerous times to avoid pressure damage, and it was assessed in a 2017 care plan that X could “reasonably be expected to reposition her disabled sons at night-time, single-handedly”, despite X having her own health issues. She was not unwilling at the time, it should be noted, or dissenting from this view.
In July 2019 they sought urgent interim night time care as their mother’s health had declined and she said she could no longer cope with caring for her two sons without support. This was repeatedly declined.
The High Court granted interim relief (10 hours per day funded night time care) on the 12th of December 2019, and again confirmed this in January 2020 when the deputy judge continued interim relief and granted permission for judicial review.
“The way the Care Act works is as follows:
Where it appears to a local authority that an adult may have need for care and support a care ‘needs assessment’ must be carried out by the local authority under section 9.
Having carried out that assessment, the local authority must go on to consider whether the assessed person has any eligible needs under section 13 and the Eligibility Regulations.
If the person assessed has eligible needs, the local authority is under a duty to provide support by section 18.
If the assessed needs are not eligible needs than the local authority has power under section 19 to meet those needs.”
Mr Justice Fordham added:
“Section 19(3) empowers the local authority to “meet an adult’s needs for care and support which appear to it to be urgent… without having yet
(a) carried out a needs assessment or a financial assessment, or
(b) made a[n eligibility] determination under section 13(1).”
Section 24(1)(a) requires a local authority, when acting under sections 18 or 19(1) to “prepare a care and support plan or a support plan for the adult concerned”.
Under section 25(1), the plan must specify the assessed eligible needs which the local authority is going to meet and the way in which it is going to meet them.
Section 27 provides for [existing] plans to be reviewed and revised, including a duty of re-assessment and re-determination in materially changed circumstances, and specifies how the local authority is to approach review and revision.”
The Statutory Guidance states that ‘urgent’ must take its everyday meaning, and “where an individual with urgent needs approaches or is referred to the local authority, the local authority should provide an immediate response and meet the individual’s care and support needs… Following this initial response, the individual should be informed that a more detailed needs assessment, and any subsequent processes, will follow.”
Councils using a Three Conversations approach may need to consider whether their response to Conversations One and Two actually complies with this Guidance, it is suggested, in light of this case.
‘Rolling’ Judicial Review
This case is an example of a ‘rolling’ judicial review where some issues get resolved en route to court but there is something remaining still to be sorted out.
R (XY) v Secretary of State for the Home Department  EWCA Civ 2604  1 WLR 1297 discussed “rolling reviews” and concluded: “there is no hard and fast rule. It will usually be better for all parties if judicial review proceedings are not treated as ‘rolling’ or ‘evolving’, and it is generally simpler and more cost-effective for the reviewing court to avoid scrutinising post-decision material. But there will also be a need to maintain a certain procedural flexibility so as to do justice as between the parties”.
Mr Justice Fordham stated
“This case called for, and illustrates the appropriateness of, the procedural flexibility which the Courts have described. The design of the claim was permissible, sensible and has been vindicated. The parties were able to focus on the substance, and so was the Court.
The central features of the case as brought were: a continuing statutory function regarding the meeting of needs; a continuing request for a particular care provision response; a continuing refusal of that request; and the consistent central issue as to whether the requested response was, in all the circumstances, the sole justifiable response or not, such that if it was, the refusal was unreasonable in a public law sense.
The discipline came from being able to see clearly the basis on which the claimant says that the defendant is unlawfully failing to comply with a public law duty to act reasonably; and the basis on which the defendant says that its refusal is reasonable.
This approach could take in its stride the reality on the ground, that the parties would continue to communicate about the disputed issue between them.
There was no unfairness or prejudice. There was no problem of inadmissibility or irrelevance of fresh evidence. There was no need for the claim to be re-pleaded. The interests of both parties were protected, as the story of the case unfolded.”
Sole Justifiable Response
“The central question which arose in this case… was whether an urgent night-time care need had arisen, because the mother could no longer reasonably be expected to do this, with the sole justifiable response being the urgent interim care provision to allow for night-time carers, pending a full reassessment of needs.”
“The grounds for judicial review put the ‘sole justifiable response’ point as follows:
(a) There is an urgent need for interim care because the claimants are known to require 24-hour care and [the mother] is no longer able to provide it at night;
(b) The only justifiable care to meet this need is funding for 10 hours’ night-time care per day …”
“that immediate funded night-time care is the sole justifiable response to meet their urgent needs”.
The defendant council argued that an interim injunction requiring night time care under section 19(3) was the wrong power to cite as the power in question:
“section 19(3) is only applicable before an initial statutory needs assessment has been conducted: “section 19 is without any application in this case”, since the claimants “seek … a re–assessment and not an initial assessment of their needs”.
Secondly, where there have been prior assessments, and where there is a pre-existing care and support plan, the applicable statutory function to address any necessary additional action is “a review under section 27”; and “[u]ntil that review has been completed, the obligation on the Defendant is to meet the claimants’ needs as already assessed“.
Thirdly, in the context of a review under section 27, “if there was an obvious case for intervention, such as an emergency, or an easy adjustment to make… interim arrangements could be made”. This explains the passage in the Guidance at paragraph 13.34, referring to “interim packages to urgently meet needs while the plan is revised”. Such urgent interim action would “need to be provided under section 27, and in particular section 27(4)” [not under section 19….]
The defendant council actually suggested that since the claimants had, throughout, nailed their colours to the mast of section 19(3), the claim must fail for identifying the wrong power. “That is so, even if the defendant is acting unreasonably in failing to provide urgent interim care provision.”
Mr Justice Fordham disagreed with this view (unsurprisingly in our view);
“The fact that there is an existing care and support plan, to which the section 27 function of review and revision is applicable, does not exclude any application of section 19(3).
As the Guidance emphasises (paragraphs 13.8 and 13.27), the section 27 review and revision functions can engage the conduct of a further assessment under section 9(1).
The point can straightforwardly be tested by taking section 27(4). It provides as follows: “Where a local authority is satisfied that circumstances have changed in a way that affect care and support plan or support plan, the authority must – (a) to the extent it thinks appropriate, carry out and needs or carer’s assessment, carry out financial assessment and make a determination under section 13(1), and (b) revised care and support panel support plan accordingly.”
The “needs… Assessment” referred to in section 27(4)(a) would be a section 9(1) “needs assessment” (we are not sure the judge is 100% right about that, because s27 very carefully avoids referring a council back to s9, which would have been the obvious thing to do: it refers to a proportionate reassessment that is possibly a process out there all on its own, as is the care planning equivalent after a revision, but we do not think that it matters in the context of this case).
In the period of time before that section 9(1) needs assessment has been “carried out”, it would be a “needs assessment” which has not “yet” been carried out.
If section 9(1) applies, why not section 19(3)? On the natural and ordinary meaning of the words, section 19(3) would straightforwardly apply to that situation. This is a benign and protective interpretation. It means, simply, that the local authority has the discretionary power to meet care and support needs “which appear to it to be urgent”. It is especially important, given that Parliament referred to revision of the plan as being a step taken after the carrying out of the relevant (4)(a) assessments. That is a very strong indication that urgent needs, pending assessment, would be met not by urgent revision of the plans but by (3) urgent meeting of needs by way of provision of care and support.
It follows, from an examination of section 27(4) alone, that section 19(3) is not in principle restricted to the initial contact stage, and the position prior to the carrying out of a first “needs assessment”. It is to be noted that in section 19(3), Parliament spoke of the local authority as not “having yet – (a) carried out a needs assessment…”; it did not say “having yet – (a) carried out any needs assessment”.
The defendant had agreed from August 2019 onwards to carry out a full reassessment of the claimants’ needs for care and support. That full reassessment would constitute “a needs assessment” for the purposes of section 9(1).
In Mr Justice Fordham’s view, the previous judges’ granting of interim care, were orders relating to the taking of steps which the defendant had the legal power to take, pursuant to section 19(3).
He stated that the defendants did also have the power to take urgent action pursuant to section 27, which empowers the local authority to revise a care and support plan.
“An urgent revision to a care plan could be made, and that could have been done in the present case. That could, moreover, be especially important if there is a situation where there is something temporary and urgent but where everyone agrees that there is no question of carrying out a further section 9(1) assessment.
In a case where there is to be a section 9(1) further assessment, the local authority has two overlapping powers. They operate in accordance with the ordinary and natural meaning of the words chosen by Parliament, to enable a local authority to respond to urgent needs. This approach is supported by paragraph 13.34 of the Guidance which contemplates that urgent care provision may be implemented not just through an urgently revised plan, but also “to urgently meet needs while the plan is revised.”
Mr Justice Fordham went on to identify three key themes in the defendant’s refusal to grant interim relief;
- “The defendant’s ‘inability’ to make any change without a reassessment of needs.
The defendants stated they were “not able to make changes to [the claimants]’ care support plans without completing a reassessment of their needs”. It described a needs assessment as being “required before we instil any change in the care package, urgent or otherwise”.
This language “was an unfortunate overstatement of the position.”
“The statute entrusted the defendant with a discretionary power to act without having completed a reassessment. It did so, even on what emerged as the defendant’s analysis of section 27. A discretionary power, together with repeated requests that it be exercised, required the defendant to address whether to exercise it. Instead, the language of the refusals ruled it out. In concrete human terms, the central question was whether the mother could reasonably be expected to continue to undertake the care provision of repositioning her sons at night, single-handedly? If the local authority was reasonably satisfied that she could, then it could justify refusing to provide urgent interim care. If, on the other hand, the local authority was reasonably satisfied that she could not, then I cannot see how it could in those circumstances justify refusing the urgent interim care provision. In the latter scenario, it would be “able” to make the provision, and the needs assessment would not be “required” before it did so. It needed to ask and answer the question.”
- “The defendants had a ‘health and safety’ concern about whether carers could be expected to reposition the claimants without appropriate equipment having first been installed.
The defendant said: “the local authority cannot send staff to undertake night-time care without the proper equipment in place” and “there are health and safety issues that the local authority required to consider before sending its staff, if any”.
“There can be no doubt that the defendant was reasonably entitled to be concerned about, and wish to evaluate, equipment and health and safety. However, that could not of itself be a complete answer to whether there was or was not an urgent need, justifying immediate interim action, notwithstanding that the health and safety assessment had not yet taken place.”
- “Whether the claimants’ solicitors had provided proper evidence to support the urgent need that they were describing as calling for urgent interim care provision.”
The defendants had argued that the evidence supplied by the occupational therapist did not stipulate that 24 hour care was ‘required’ or ‘urgent’. It stated in both the recommendations only that:
‘[the service users] would benefit from 24-hour care and support as his home environment. He has complex manual handling needs and care needs to justify this level of provision’.
Mr Justice Fordham stated that “In my judgment, the expert reports put forward could not reasonably be regarded as failing to “stipulate” that the additional night-time care and support was “required”, or “urgent”. The key reason given in legal services’ letter focused on the use of the language “would benefit from …” However, a full and fair reading of the reports show that they went far beyond recommending a course as being beneficial or optimal. In his careful and detailed reasons for the grant of interim relief on 12 December 2019, the judge Sam Grodzinski QC said this:
“a need for night-time care is clearly supported by the OT reports, and by what [the mother] states (supported by medical evidence [in] the bundle) about her physical inability to carry on providing such care at night time. The defendant’s… letter takes issue with whether the care needs are urgent, and notes that the OT report states that ‘[the claimant] would benefit from 24-hour care and support in his home environment’ (my emphasis). However, I do not interpret that sentence as implying that such care is regarded by Ms Hillier as an optional or aspirational benefit, rather than an immediate need in particular when the reports are read as a whole.
Mr Justice Fordham stated “I entirely agree with that assessment and cannot improve on it… In my judgment, for these reasons…the defendant was not acting reasonably – in the light of the experts’ reports put forward in October 2019 – in refusing to exercise its discretionary power to provide urgent night-time care and support. Nothing in the documents provides reasonable support for any conclusion that the mother could reasonably be expected to reposition the sons at night, single-handedly. Indeed, I have been able to find no evidence that the defendant – and certainly anyone with decision-making responsibility – asked itself that question and, if they did, as to how they answered that question. It follows that I do not accept Ms Rowlands’ submission that there was no unlawfulness as at the date when proceedings were commenced.
The mother’s continuing support
The defendants argued that that night time care was not urgent, because documents served on 23 April 2020 showed that X continued to reposition her sons herself at night-time, even with two carers in the house. X described herself as “always present at night, and “offers additional support”, stating that “she often sleeps next to [the second claimant], in order to offer him night time support”, “Before we had overnight carers, I would be solely responsible for providing any support, apart from during periods of respite. However, I still choose to assist the workers when they provide physical support.”
The defendant argued that this supported their view that X could meet their night time needs.
However, X explained to the court, using evidence from her GP, why she could no longer be expected to cope or really cope with the physical demands.
“I need surgery to relieve pressure on the spinal nerve which gives me quite a lot of pain when bending. Proposed surgery has a recovery period of 6 weeks, but without support I would have to continue my caring duties without a break. In my present condition I am unable to walk except for short distances indoors at home and not at all outdoors. I am in pain when I stand and can only do so for short periods. I have had a further MRI scan which shows a degenerative problem in my spine which is unlikely to be fixed by surgery. I also have the problem with my right shoulder which are reported to my GP and 2018, and pain to my knees and neck which I’ve been told is due to degeneration and I think the prognosis is not good. In addition, I have high blood pressure. Caring for the claimants is extremely physically demanding. The most physically demanding part is turning them at night, and as I explained in my first statement, I cannot physically do it anymore.”
Mr Justice Fordham highlighted that “the Court was shown no document which addressed the question whether the mother can reasonably be expected to reposition her sons at night, single-handedly, and concluded that she could.”
“The sole justifiable response was the continuation of the urgent interim care provision requested by the claimants, which became the subject of the interim relief orders of the court, which orders have now fallen away. I am satisfied that section 19(3) is a statutory discretionary power which was relevant and applicable in the present case. I am satisfied that the defendant could not justify as reasonable its refusal to act.”
“Until the documents disclosed on 23 April 2020, nobody grappled with the central, straightforward question in this case. Was the mother reasonably to be expected to reposition the claimants during the night-time, single-handedly?”
“The claim for judicial review succeeds. In all the circumstances, I will grant the remedy sought. I will convert into a final mandatory order the order made by way of interim relief by Mr Grodzinski QC on 12 December 2019 and continued by Mr Roger ter Haar QC on 15 January 2020. I have a discretion as to whether to order a remedy. I am satisfied that it is appropriate in this case to do so. The fact that the order embodies what I was told at the hearing is now a decision of the defendant is something which can be recorded in an appropriate recital. I regard as healthy the congruence between what I am ordering under my secondary, supervisory jurisdiction based on public law principles of review, and the position to which the defendant as primary decision-maker dealing with the merits has come in the end. Moreover, the story and circumstances of this case, including the fact that there was no decision letter communicating the new decision, reinforces my view that what is needed, in the current circumstances, is clarity.
What the defendant ultimately decides, once the various steps identified have been carried out, will be a matter for the defendant as the primary decision-maker under the statute. It goes without saying, but perhaps in the circumstances it is worth recording, that that ultimate decision will be the one which the defendant conscientiously considers to be correct, on the merits. In public law terms, it will need to be one which is justifiable as reasonably open to the defendant, on the evidence before it, for the reasons it identifies.”