R (on the application of JG) v London Borough of Southwark
 EWHC 1989 (Admin)
JG is a profoundly disabled young woman who requires care and supervision with all aspects of her daily life
She was receiving care at home, by her parents and a team of paid carers funded by Southwark LBC.
Southwark had provided JG with care funding since 2013, by way of direct payments. She received funding for 58 hours of 1:1 support per week. In addition, her parents received fifteen hours of respite care a week, which they used to pay for further 1:1 support, making a total of 73 hours of 1:1 support per week (over 10 hours in every 24 hours).
Since December 2018 the Council had also been paying for a carer to stay overnight for 8 hours. This was originally made under an order for interim relief in earlier separate judicial review proceedings and since then had been continued on a ‘without prejudice basis’.
The Council now wanted to remove that 8 hours per night of funded provision.
JG was assessed in March 2020, by social worker Mr Choudry. The assessment concluded that she needed 2:1 care for two hours a day, but that otherwise 1:1 care was sufficient to meet her needs.
JG’s mother acting as her litigation friend applied for a judicial review of the March needs assessment, and also claimed that the Council failed to assess JG’s father and carer (CG).
The March 2020 Assessment
NG highlighted that, in her view, JG’s needs had increased after a hospital stay in late 2019, and that she needed more 2:1 care.
Mr Choudry oted that when JG was discharged from hospital, there were no recommendations to increase her care package, there was no OT report to indicate her needs had changed, and her recent behaviour support plan (Feb 2020) also gave no guidance as to whether JG required 2:1 or 1:1 support
Mr Choudry commented that NG was unable to state fully what the additional support would be for.
He said that NG was acting as a second carer to support her daughter, which in effect was providing 2:1 support, which was not an assessed need. and was choosing to act as the second carer.
Mr Choudry “felt that NG’s needs as a carer were overshadowing her daughter’s needs as she felt that JG needed additional support to manage her behaviour and she [was choosing to provide] this additional support as a means of managing her daughter’s challenging behaviour without regard to the recommendations of the recent behaviour support plan.”
Mr Choudry also pointed out that there had been “difficulties in arranging meetings with NG and real difficulties in obtaining objective information from her, regarding her daughter’s care and support needs”.
All four of JG’s carers suggested that she needed 2:1 support due to her challenging behaviour and non-compliance with her care at times.
Mr Choudry suggested training for her carers to help them manage her behaviour, and also pointed out that JG had been making progress with her independent living skills whilst attending college.
Mr Choudry concluded that JG would not ordinarily need 2:1 care, but due to the current un-adapted bathroom at home, she did. He said that the adaptation to the bathroom had been an ongoing recommendation but one where NG and CG had not agreed to the works until very recently.
He also concluded that her support was not being implemented in line with her behavioural support plan; for example, he noted that during personal care times the carer and her mother were in close proximity to JG, and that in one instance the carer held her arms and restricted her movements. This caused anxiety to JG, (which would need to be discussed at a best interests meeting as being a restriction and deprivation of her liberty). Mr Choudry suggested that JG’s anxieties could be reduced by some degree if she was involved in the task, for example giving her a flannel to hold. He stated that carers needed to understand her communication and work at her pace rather than being prescriptive during personal care times. He felt that “the care workers were not following any techniques from the behaviour support plan in order to manage the behaviour”.
Mr Choudry considered that this equated to care being done ‘to’, as opposed to being done with JG
NG also said that the claimant needed 2:1 support when out in the community. Southwark accepted that JG had the strength and ability to mobilise herself but required 1:1 care to help and support her. She took long walks each day, up to five hours, the support being funded by Southward. Mr Choudry had recommended that until JG’s mobility had been assessed the safest option would be for her to use an attendant-propelled wheelchair and be assisted by one carer.
Mr Choudry noted that JG had an erratic sleep pattern, but was ‘far from an insomniac’, and therefore recommended the removal of the night time carer, which cost the Council £50,000 a year. He suggested remote monitoring would be more beneficial. He also considered that if JG were living a supported living scheme she would be encouraged to go back to sleep and remain in her room.
He concluded that that the carers’ logs did not indicate that JG had a significant level of need that would warrant additional support which could not ‘reasonably’ be met by her parents who were willing carers.
Judge Allen said there were numerous challenges on grounds of rationality.
(1) Behavioural Support/Management
Judge Allen stated that there was sufficient evidence that JG’s behavioural plan was being followed, but that Mr Choudry did not examine the evidence sufficiently: “[Mr Choudry’s] conclusion that it was not being implemented was one which did not take full and sufficient account of the full range of the evidence before him. As a consequence, I consider that his report is materially flawed in this regard, going beyond simply disagreement to failure to take into account all evidence which a reasonable decision maker would take into account.”
2) Night time care
Judge Allen said “The essential issue here is the need to address the relevant evidence about the severity of the claimant’s sleep problems which…I do not consider has been done. Determining that this aspect of the assessment is unlawful does not entail the necessity of £50,000 per year funding having to be provided by the respondent in this regard. Any defects in the decision under challenge are open to being cured by a re-evaluation of the claimant’s needs on the basis of a full consideration of all the relevant evidence. It is entirely possible that a lawful assessment taking into account all the evidence would reach exactly the same conclusion as has been already reached. But the matter can clearly not be prejudged, and my task in this case is to consider the lawfulness or otherwise of the decision rather than the implications that may flow from it, in any event.”
(3) Occupational Therapy Evidence
Judge Allen found that it was unlawful for Southwark not to have taken account of evidence of various professionals on JG’s need for a wheelchair when outside her home; “It does not appear to me that there was a sufficient evidential base for the decision maker to come to the conclusions he did with regard to the occupational therapy evidence, and accordingly this aspect of the decision is also, I find, materially flawed.”
It was also irrational to decide JG was eligible for 2:1 care for two hours per day: “It is, as is argued, common ground that the claimant suffers from both urinary and faecal incontinence. She therefore requires showering not only at regular times in the morning but at unpredictable times in the day and night. As is argued, that need is not answered by a provision limited to two hours a day. Given the acceptance of the need in this regard, I agree that the limiting of this to two hours is irrational, and again this element of the decision is materially flawed.”
“Bringing all these matters together, I conclude that the claimant has made out ground 1 and identified elements of the assessment which are unlawful. This is not just a matter of disagreement. The legal test, as set out above, is a high one, and I have no doubt that Mr Choudry carried out a conscientious evaluation of the claimant’s circumstances. But there were, in my judgment, material pieces of evidence which he did not take into account in coming to the conclusions that he did and that the assessment is as a consequence unlawful.”
Judge Allen also found that Southwark Council had failed to complete a carer’s assessment for CG.
Judge Allen said: “The defendant argues first that CG is not a party. This point is, in my view, effectively answered by the argument that the purpose of the carer’s assessment is to assess among other things whether the carer is able and likely to continue to be able to provide care for the adult needing care and what support should be put in place to enable that to happen. Clearly, [CG] has a sufficient interest to pursue this point” – meaning that he could easily have been a proper party, and that a failure to assess him went to the heart of the matter of the extent of NG’s own needs, we think.
All in all, Judge Allen found aspects of the Council’s case to be so materially flawed as to require judicial review.
Reading between the lines, and taking into account the reference to the previous judicial review, we think that one can discern that there is a long standing dispute between this family and the council, and that the council thought that it could win this round. Family carers have to have evidence, just as much as a council’s staff are required to – it’s not always enough to say that ‘x always happens’, or ‘if we did x, then y would inevitably occur’. When experts’ opinions are paid for in advance of a case, by families with a position to establish, it is inevitable that the experts take on board what the commissioning parents SAY; they do not owe a duty to a court at that point.
The judgment illustrates how difficult to ‘call’ such proceedings can be: the Oxfordshire (Davey) case went the other way (the council won that case) precisely because the social worker was thorough, moderate and conscientious in delivering an opinion that the family’s approach to care was not wholly ideal for the individual. Here, savings of £50K were at stake but Mr Choudry comes over as open and balanced – indeed, is described as conscientious, too – such that Southwark could, in another era, possibly have won this case. There is plenty of case law to the effect that social workers are to be given the benefit of the doubt given the role that they shoulder, in the system, and allowing for differences of professional opinion.
But that overlooks the fact that the courts will have been taking note of increasing lawlessness in Care Act decision-making: witness the upturn in LGSCO upheld complaints, for instance, and the number of those in which the council is simply said to have been acting outside the Care Act, or unlawfully, in light of clearly established principles. And then there has been the recent Redbridge case in which Fordham J came to one of the rarest ever conclusions in Care Act case law – namely that in relation to the exercise of the s19 POWER to meet needs, before an assessment, based on urgency, no reasonable authority could have conceivably concluded that there was any other way of meeting the needs in that case than the provision of 10 hours of paid care a night, to help the physically deteriorating mother cope with the needs of 2 adult sons. In both that case and this, the judges have focused on the sheer absence of engagement, by the staff concerned, with the evidence being put before them. The judges were not saying that the staff could not disagree, it should be noted – and nor need they explain every aspect of their reasoning – but that if they’re going to disagree, there must BE material on which it is objectively legitimate to rely in any such conclusion. That is to say, irrationality can be made out by focusing on the absence of any evidence that the body took account of a relevant considerations – that leaving out of the account makes for a decision that is unlawful in the public law sense, just as much as taking into account of irrelevant conclusions would, too.