High Court judge issues mandatory order requiring council to provide urgent night-time support for disabled brothers

A local authority acted unlawfully after it failed to provide night-time care and support to two adult brothers with severe physical and learning disabilities pending a full needs reassessment, a High Court judge has ruled.

The case of Ali Raja & Anor, R (on the application of) v London Borough of Redbridge (Rev 1) [2020] EWHC 1456 (Admin) was about whether the sole justifiable response for the council to adopt was to provide additional care and support pending the reassessment.

Mr Justice Fordham said: “That question really turns on whether the mother of the two brothers could, in the meantime, reasonably be expected to reposition her sons at night-time by herself.”

The judge said that the starting point was that, as assessed in 2017, the two claimants each had night-time care needs requiring that they be repositioned so as to avoid the onset of pressure damage, but their mother was at that time assessed as being capable of carrying out that repositioning single-handed, notwithstanding her own health conditions.

“In a nutshell, it was at that time assessed that she could reasonably be expected to reposition her disabled sons at night-time, single-handedly.”

In August 2019 Redbridge’s legal department confirmed that the council was arranging to undertake an assessment of need and would consider if night service was required to undertake that assessment.

The claimants’ solicitors subsequently made a series of requests, asking that interim care provision be made so that the mother, who said her health was deteriorating, was no longer expected single-handedly to deal with the repositioning of her sons at night.

The case put forward for the claimants was that the defendant as local authority had a statutory power to make interim care provision; and that the sole justifiable response was to make such provision.

The council declined to accede to the requests and resisted the claim throughout.

Sam Grodzinski QC, sitting as a deputy High Court judge, granted interim relief in December 2019. An application by the council to set aside interim relief was rejected by Roger ter Haar QC.

Mr Justice Fordham said he was satisfied that section 19(3) of the Care Act 2014 – which 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)" ­– was a statutory discretionary power which was relevant and applicable in this case.

He said: ““I am satisfied that the defendant could not justify as reasonable its refusal to act, as articulated in its letter dated 3 December 2019, purporting to respond substantively to the expert occupational therapy report put forward by the claimants in October 2019; nor its refusal to act, embodied in its resistance to interim relief, and the substantive claim, in the proceedings commenced on 6 December 2019.”

He added: “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?

“Once that question was addressed by Mr Knight, it received a clear answer, an answer finding support in the evidence filed on behalf of the claimants including the expert reports of Ms Hillier, and in the expert report of Ms Sheehan obtained by the defendant itself. It is to Mr Knight's great credit that when he evaluated the position he did so straightforwardly, by reference to his assessment of the merits, and not at all 'defensively' given the litigation.”

Finding that the claim for judicial review succeeded, Mr Justice Fordham converted into a final mandatory order the order made by way of interim relief by Mr Grodzinski QC and continued by Mr ter Haar QC.

Mr Justice Fordham said: “Procedurally, this case is a good example of a ‘rolling judicial review’, capable of being embraced as appropriate, with suitable rigour and focus, within the principled flexibility recognised as applicable in public law proceedings.”