Council loses High Court battle over level of support for disabled young woman

The London Borough of Southwark has lost a High Court case over a disabled young woman’s care plan after a judge found aspects of the council’s case to be materially flawed or erroneous.

The case of JG, R (On the Application Of) v London Borough of Southwark [2020] EWHC 1989 (Admin) concerned an application for judicial review brought by JG through her litigation friend, her mother NG.

This reviewed a needs assessment carried out in March and also raised a claimed failure to assess the claimant's father and carer (CG).

JG has multiple medical problems including severe learning difficulties, autism and physical disabilities.

Her care is provided at home by her parents and paid carers funded by Southwark since 2013.

She receives funding for the equivalent of 58 hours of 1:1 support a week and her parents receive 15 hours of respite care a week which they use to pay for additional hours of 1:1 support.

Since December 2018 Southwark has also paid for a carer to stay for eight hours every night, which the council has since said it is entitled to withdraw.

Social worker Nadeem Choudry completed an assessment in March 2020, and concluded that although NG said a second carer was needed “she was unable to state exactly what the second carer would be doing”.

Mr Choudry also noted that a recent behaviour support plan made no recommendation regarding changes to JG’s support needs.

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”.

Mr Choudry felt that NG's needs as a carer were overshadowing her daughter's needs “as she felt that the claimant needed additional support to manage her behaviour and she was providing this additional support as a means of managing her daughter's challenging behaviour without regard to the recommendations of the recent behaviour support plan”.

Sitting as a deputy of the High Court, Judge Allen said there were five challenges on grounds of rationality.

He said Mr Choudry’s conclusion that JG’s behaviour support plan was not being implemented “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.”

Southwark argued that the overnight carer cost £50,000 a year and was not needed.

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.”

He also found that since JG suffers both urinary and faecal incontinence and requires showering at unpredictable times, “that need is not answered by a provision limited to two hours a day…limiting of this to two hours is irrational, and again this element of the decision is materially flawed”.

It was also unlawful, he found, for Southwark not to have taken account of evidence of various professionals on JG’s need for a wheelchair when outside her home.

“Bringing all these matters together, I conclude that the claimant has made out [the grounds] and identified elements of the assessment which are unlawful,” Judge Allen said.

"This is not just a matter of disagreement. The legal test…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.”

He also found Southwark had failed to complete a carer's assessment for CG.

Southwark argued he was not a party to the case, but Judge Allen said: “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.”

Mark Smulian