| SPOTLIGHT |
North Central London Integrated Care Board was in breach of its duty to ensure a severely disabled boy has a lawful health care plan, the High Court has found.
Mr Justice Macdonald said the case of A, brought by his litigation friend, B was for judicial review argued on three grounds.
A successfully argued that the board was in ongoing breach of its duty to ensure he has a lawful health care plan.
He was unsuccessful in arguing the board’s decision to terminate the then current registered care provider's contract on in July 2024 and replace them with a new provider was irrational.
Macdonald J said the third ground concerned A’s parents paying for his healthcare package at £10,000 a week because the board failed to arrange a lawful healthcare package and the family argued it was thereby entitled to restitution on the ground of unjust enrichment.
But he ruled this concerned a remedy rather than grounds for judicial review and the parents would have to make a county court claim if they wanted to pursue this.
A is 11 years old and has the rare disorder that is life limiting. The court heard he has severe epilepsy that places him at risk of sudden death, episodes of atonia that place him at risk of suffocation, a severe learning disability, and communication and mobility disabilities.
The board commissions individualised care for children with complex health needs that cannot be met by the NHS's universal, and specialist commissioned services.
A also has an education, health and care plan maintained by the London Borough of Haringey, an interested party in the case.
His mother told the court of a “never ending struggle” to get the services A needs form the board and Haringey.
A continuing care review process in June 2023 was told a company had been providing A with 61 hours of care, which was to increase to 126 hours week based on A requiring one to one carer support at all times with a second carer available to assist.
The company struggled to find additional carers for the increased care package, resulting in the mother having to cover significant periods of care.
She reported difficulties in the provider sourcing carers in early August 2023 and requested an urgent discussion with the ICB in circumstances where the family was being “messed around so badly by [the provider] that [the family] just can't cope anymore”, the court was told.
A’s mother told a later meeting she did not want A's care package delivered by a sole provider and did not want REACH nurses - from a service provided by a local health trust - in the package. A series of disputes over which provider to use ensued.
Macdonald J said: “I am further satisfied that the claim succeeds in respect of Ground 1”
This was because s42(3) of the Children and Families Act 2014 imposes an absolute and non-delegable duty on the board to arrange the specified healthcare provision.
The judge noted “it is not a ‘best endeavours’ obligation, within this context, a review process having taken place and been concluded, I am satisfied that it was not sufficient to fulfil its mandatory duty under s.42(3) of the 2014 Act for the [board] to rely on a care plan that it concedes was outdated and which predated the review process that led to the stipulation for a health care plan in Section G of A's EHC plan dated 23 November 2023.
“Rather, it was reasonable to expect that the [board] would arrange for a health care plan that reflected the outcome of the comprehensive, multidisciplinary review process that commenced in June 2023 and concluded in the finalised EHC plan in November 2023. “
Macdonald J said the board did not take reasonable steps to seek an updated health care plan from the provider, and although there were clearly difficulties with that provider, he was not satisfied that a request for an updated care plan first made in May 2024, five months after the conclusion of the review process and finalisation of the EHC plan, "and then only at a time when thought was being given to terminating the contract with [the provider], met the demands of the mandatory duty…”
The main argument on the second ground was that it had been irrational for the board to terminate the care provider's contract and replace it with staff from another provider the next day when there was no lawful health care plan in place, and the second provider had not been trained in A’s requirements.
Macodnald J said this ground was arguable but “I am not satisfied that the defendant's decision to terminate the contract with [the original provider]....., and to arrange for [the second provider] to provide the health care provision specified…can be said to have been irrational in the public law sense”.
He said the third ground on unjust enrichment did not succeed as A had suffered no pecuniary loss and “I am not satisfied that the claimant is entitled within these judicial review proceedings to a remedy of restitution on the grounds of unjust enrichment.
"If the parents seek to recover from the defendant the monies they have expended…it remains open to them to pursue a civil claim in the County Court.”
Mark Smulian
