Claimant wins judicial review challenge over “unlawful” level of Care Act support

An autistic woman has succeeded in a claim for judicial review against the London Borough of Croydon after a deputy High Court judge ruled that the council had failed to meet her needs contrary to the requirements of the Care Act 2014.

The claim in P, R (On the Application Of) v London Borough of Croydon [2022] EWHC 2886 (Admin) succeeded on three of the four grounds submitted on behalf of the claimant.

These were:

• Ground 1: Croydon had failed to meet the claimant’s needs;
• Ground 3 (as substituted following a permission hearing before Mr Justice Cotter): the defendant council, in calculating the claimant’s personal budget, acted unlawfully in that it failed to comply with the Statutory Code; and
• Ground 4 (also as substituted): the defendant council, in preparing and producing her Care and Support Plan (CSP), acted unlawfully in that it failed to comply with the Statutory Code.

Ground 2 – that the council had failed to assess the claimant's carers' needs – was ruled academic.

The claimant is 27 years old, living with Autistic Spectrum Disorder ("ASD"), absence epilepsy, learning difficulties and a number of other significant disorders and anxieties.

The woman previously attended a specialist college, where she received “substantial day-to-day help with her needs.” She was due to leave the college in July 2020, but left in March 2020 because of the pandemic. There was an increased need for her parents to care for her at home. Croydon undertook a carer's assessment of the claimant's mother in March 2020, shortly before the claimant left college.

On 6 October 2021, Croydon, following a meeting with the claimant and her family, recorded an analysis of her needs and how it might properly meet those needs ("the October 2021 analysis").

This document referred in detail to the claimant's need for support with various important aspects of daily life, including the need to: “maintain personal hygiene, wear appropriate clothes, manage toilet needs, eat and drink properly, be aware of hazards, develop social relationships, and access work, training, education or volunteering.”

It concluded with a section indicating that the claimant needed:

1. "24 hour support", for "personal care, eating and drinking, and home and living");
2. "up to 7 hours support, 7 days a week", to assist with accessing and engaging in work, training, education or volunteering;
3. "up to 7 hours support, 7 days a week", to assist her to maintain relationships and engage in normal everyday activities;
4. An "indicative" support budget of £1,200 per week.

However, the defendant's position subsequently was that the indicative support budget set out in the October 2021 analysis was wrong.

The claimant’s father wrote to the council on 25 January 2022 and again on 24 February 2022. He asked it to undertake a review of support payments going back to August 2019, noting that it had “agreed to increase those payments from 30 hours per week to 35 hours per week, but had failed to do so.” He also asked the defendant to finalise a support plan for the future, reflecting the fact that the claimant was no longer in full-time education.

On 25 February 2022, the council responded, stating again that the "Indicative Budget" was not legally binding and did not determine the Support Plan amount. It added that any increase in the support package would be subject to "review / reassessment".

On 23 March 2022, the claimant through her solicitors sent a letter before claim, “asking the Defendant to agree to produce a care plan identifying her need for 96 hours per week of additional support (i.e. support from non-family members), at a cost of £1,200 per week.” Furthermore, she sought compensation for what was said to be the council's failure to provide for her care and support needs.

On 7 April 2022, in its formal response to the letter before claim, the council stated that the "indicative budget" in the October 2021 analysis had "been put together and authorised erroneously" and that the errors "need to be rectified and recalculated".

On 4 May 2022, the claimant through her solicitors confirmed that their position was that a reassessment of need would not be the right way forward, since the October 2021 analysis had (in her family's view) accurately reflected her needs, and there had been no reasonable explanation of how the assessment had been wrong.

The defendant authority is responsible under the Care Act 2014 for assessing and meeting the needs of adults who meet the eligibility criteria. The claimant's case was that the council’s decision to fund 35 hours per week of support was unlawful, and that it “failed to meet her needs contrary to the requirements of the 2014 Act.”

The defendant's case was that its decision was lawful, and/or that any unlawfulness made no difference to the outcome.

On Ground 1, Judge Pievsky concluded that the defendant's decision to provide the claimant with 35 hours of support per week from February 2022 was unlawful.

He said Croydon had decided not to adopt the indicative budget of £1,200 per week, or the level of support associated with that indicative budget, which had been set out in its October 2021 assessment.

“It was (as is now not in dispute) entitled to do so. The Defendant's reason for not adopting the indicative budget, now supported by the (late) witness statement of Mr Sisman, was that it had concluded that the author of the October 2021 assessment had made an error in forgetting to take into account the level of support being provided by the Claimant's family.”

However, the judge said that what was then required, applying basic principles of public law to the decision that still needed to be made under s.18(7) of the 2014 Act, was a reasoned, procedurally fair, and reasonable decision from Croydon about how - if it was not going to meet the claimant's needs by adopting the indicative budget and the associated recommendations contained in its own October 2021 assessment - it was instead intending to meet the claimant’s needs, taking due account of the care which her family were willing and able to provide to her.

“The Defendant has not in my judgment demonstrated that any such reasoned decision was ever made. Even if it was made, no (or no adequate) reasoning was ever provided to the Claimant or her family,” Judge Pievsky said.

“The requirement to provide intelligible (if brief) reasoning for a decision about how to meet (or, in a case different to this one, a decision not to meet) an eligible person's needs under s.18 is one that in my judgment must apply generally. But the need for appropriate reasoning and explanation was particularly acute in the circumstances of this case.”

He also said he did not accept the defendant's contention that it was for the claimant, who has complex needs which need to be met under the 2014 Act, to specify precisely which particular needs would or might not be met by the provision of 35 hours of support per week, in order for a complaint about the lawfulness of the decision to get off the ground.

The judge said the appropriate relief was an order quashing the defendant's February 2022 decision pursuant to s.18 of the 2014 Act that the claimant's needs were to be met by providing for or funding 35 hours of support per week. “Largely for the reasons articulated by the Claimant's counsel, I do not accept that the case for a quashing order is substantially undermined by the offer of the Defendant to "reassess" the Claimant's needs (see s.9 of the 2014 Act),” he added.

Turning to whether there was an unlawful failure to provide 35 hours of support before February 2022, the judge said Croydon had conceded that between August 2019 and February 2022 it failed to increase the level of the claimant's support from 30 hours per week to 35 hours per week, as it had agreed to do.

The council contended that it did not follow that this was an unlawful failure to meet her needs, and/or that the Court should not be concerned with "historic" breaches of the 2014 Act, which went beyond the parameters of the real issues in the claim.

Judge Pievsky rejected those contentions. “First, it was the Defendant's own assessment, from August 2019 onwards, that she needed and would be provided with 35 hours of support per week. It was not provided. A lesser amount of support was provided. It is not said that there was any good reason for that. It was simply an oversight. The inference that the Defendant did not meet her needs in that respect appears to me irresistible.”

He added that it was not accurate to contend that the Court was unconcerned with "historic" breaches, in this context. The judge also said that whilst he entirely accepted that the issues between the parties in this case had changed over the course of the proceedings, he was not persuaded that this aspect of the claim goes beyond the parameters of the claimant's pleaded case.

Judge Pievsly said his provisional view was that the Court should declare that Croydon unlawfully failed to meet the claimant's needs between 19 August 2019 and 14 February 2022, in that it provided 30 hours of support to her per week, instead of the necessary 35 hours per week.

The second ground – failure to carry out a carer’s assessment, did not succeed. “The Defendant has, since the commencement of these proceedings, agreed to carry out an assessment of the Claimant's mother's needs. Ms Shepherd [counsel for the claimant] advanced no independent submissions, either in her skeleton argument or orally, in support of this Ground, which has become academic,” Judge Pievsky said.

In an analysis of grounds three and four – both of which concerned a failure to comply with the statutory code, the judge said: “Although the Defendant, entirely properly, involved the Claimant and her family in its October 2021 assessment process, it went on (having rejected the key recommendations of that process) to determine the Claimant's current personal budget and her CSP without any further substantial involvement of the Claimant or her family. Indeed, as I have mentioned, they did not know about the CSP's existence until after proceedings were commenced.

“Mr Swirsky [counsel for Croydon] conceded, in my judgment correctly, that this was not consistent with the requirements of the Statutory Code, and that under Grounds 3 and 4 respectively the personal budget and CSP were (prima facie) unlawful for this further reason.”

At the hearing counsel for Croydon claimed that these defects made no difference to the outcome.

However, Judge Pievsky said he did not consider that section 31(2A) of the Senior Courts Act 1981 – whether it appears "highly likely" that the outcome for the claimant would not have been "substantially different" had the conduct complained of not occurred – applied. Nor was there any other good reason to refuse to grant relief.

Concluding that the claim for judicial review succeeded, Judge Pievsky quashed (a) the council’s February 2022 decision to provide or fund 35 hours of support per week; and (b) its CSP dated 14 February 2022.

“There will also be declaratory relief reflecting the Claimant's success under Ground 1 relating to the Defendant's historic failure to provide her with 35 hours per week of support prior to February 2022”, he added.