Judge quashes Care Act assessment and decision to terminate placement

Judge quashes Care Act assessment and decision to terminate placement

A Deputy High Court judge has quashed a London borough’s Care Act assessment for a man with autism spectrum disorder and severe learning difficulties.

In JF, R (on the application of) v The London Borough of Merton (Rev 1) [2017] EWHC 1519 Anne White QC also quashed Merton Council’s decision to terminate the man’s (JF’s) residential care placement.

The judge in addition ordered the local authority to undertake a further assessment of JF's needs in accordance with the provisions of the Care Act 2014 and associated Regulations.

Merton had on 17 July 2016 decided to change JF’s residential provision at David Lewis College in Cheshire, where he has lived since 2012, to Aspen Lodge in Sussex.

The claimant, by his litigation friend and mother, relied upon two grounds of review, contending that:

  1. Merton failed to undertake a lawful assessment of his needs in breach of statutory duties under the Care Act 2014 and associated Regulations, namely the Care and Support (Assessment) Regulations 2014 SI 2827 and the Care and Support (Choice of Accommodation) Regulations 2014 SI 2670.
  2. The council unlawfully decided to change or to propose to change his accommodation. The Claimant contended that Merton had based its decision to prefer the Lodge unlawfully and predominantly upon a Pre-Admission Assessment dated 26 February 2016 and prepared by the Lodge. That document contained the conclusion that the Lodge was suitable and could adequately meet JF's needs. The claimant alleged that it was an inadequate basis for moving him from his current accommodation.

Merton denied that the needs assessment was unlawful and denied that any decision had yet been taken about JF's future placement.

In oral submissions, the council also disputed that it had yet made a final decision as to whether the Lodge could suitably meet JF's needs, submitting orally that such decisions were made at a funding panel level.

The council conceded that as in 2016, only two options remained available, namely David Lewis College or the Lodge.

“The cost of accommodating JF at the former is appreciably more expensive than at the latter,” the judge said.

In relation to ground 1, Judge White concluded that the defendant council had failed to comply with its duties under sections 1(1) and (3) and section 9(4) of the 2014 Act. The decision was not reasonable in the Wednesbury sense.

“Accordingly the Assessment was not lawful. Any re-assessment of JF's needs must be based on his current situation and not conducted (as I find it was) from the position that his placement is no longer available to him. It should be noted that this finding is entirely fact-specific in a case where there is a dispute about which decisions were actually made with virtually no evidence in support from the defendant to assist the Court one way or another,” she said. [Continues below]

READ OUR ADULT SOCIAL CARE 2017 SUPPLEMENT – this includes the findings of our exclusive survey of 56 local authority adult care lawyers. In association with LexisNexis, it also looks at the impact of the Care Act 2014, the Law Commission’s proposed replacement of the Deprivation of Liberty Safeguards, the challenges of health and social care integration, how to tackle bed blocking and much more.

On ground 2, the judge said the decision to terminate JF’s placement could not be said to be rational.

“On one persuasive view, it was made before JF's needs had been conclusively assessed under the Act. On any view, it was made before the preparation of the Care and Support Plan. In those circumstances, it is difficult to see how the decision can have been in compliance with the statutory duties contained in section 1 and 9(4) of the Act and in Regulation 3 of the Assessment Regulations,” she found.

“The defendant denied making a decision to terminate JF's placement at the DL College, a position which I have rejected. It has simply deferred the implementation of its decision. There is no evidence before the Court therefore justifying the decision.”

The judge continued: “No reasonable local authority would terminate the placement of someone with JF's complex needs without having conducted a lawful assessment of those needs and without having lawfully decided that suitable alternative accommodation was available that would enable them to meet his needs. I have found that the assessment was not lawful….. The decision to terminate can therefore not stand, regardless of the date on which it was taken.”

She added: “For the same reason, the decision that the Lodge is suitable to meet JF's needs cannot stand. If the needs have not been lawfully assessed, the deemed suitability of the alternative accommodation cannot lawfully survive. Here the third-party provider SHC assessed the Lodge as suitable accommodation well before the Care Act Assessment process was even complete. The defendant was entitled to consider the pre-admission Report but only in the face of a lawful and rationale Care Act Needs Assessment.”

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