Alistair Cantor considers a recent decision of the Administrative Court in R (on the application of JF) v London Borough of Merton  EWHC 1519 concerning the lawfulness of a Care Act assessment and associated decisions made by the local authority in respect of the termination of an existing placement and the suitability of a proposed new placement.
JF, 24 at the date of the judgment, is a vulnerable young man with Autism Spectrum Disorder and highly complex needs [1 and 10]. His parents were appointed as his guardians in 2015 and are highly involved in his life and welfare . He resided at a college in Cheshire (“the College”) from 2012 onwards. The dispute arose when the Respondent, the London Borough of Merton (“LBM”) proposed that JF be moved to a new placement at a lodge in Sussex (“the Lodge”) run by Sussex Health Care. JF’s parents regarded the College placement as being suitable and indeed of considerable benefit to him. They were concerned that a transition to the Lodge would not only risk a serious reversal in the slow progress JF had made, but also harm his well-being and place him at risk of a detention under the Mental Health Act . A visit to the Lodge did not allay their concerns. The cost of accommodating JF at the Lodge was to be appreciably cheaper than at the College .
JF issued proceedings for judicial review on two grounds :
- LBM 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; and
- LBM’s decision to move JF to the Lodge was unlawful since it was based predominantly and unlawfully on an inadequate “Pre-Admission Assessment” (“the Report”), prepared by Sussex Healthcare themselves and purporting to confirm the Lodge as suitable for JF and adequately able to meet his needs.
LBM’s response to the first ground was to deny that the Care Act Assessment was in any way unlawful . Its response to the second ground was to deny that any final decision to move JF had in fact been made, asserting in the course of oral submissions that any such final decision could only be made at funding panel level, which had not taken place yet .
First Ground of Review
The court rejected criticism of the Assessment on the basis that, when dealing with JF’s needs for speech/language and occupational therapy (“SALT and OT”), it simply referred to various reports without setting out specific analysis. The Assessment had reached a series of conclusions as regards those needs , accepting that such needs in fact existed. It furthermore “plainly” considered the various reports . This was sufficient, since the assessor was under no duty to accept every aspect of an expert report or to explain in a Care Act Assessment why he/she disagrees with anything set out in such a report . Paying appropriate regard to the principle that the court should be slow to interfere with the decision maker’s “well placed ability to judge an individual’s needs” , the Assessment could not be described as unlawful or unreasonable in this respect.
However, the court found in favour of JF in respect of the remaining points made in support of the first ground. Firstly, JF was no longer to have access to certain aspects of care (on-site MDT and TCE) at the Lodge, as he did at the College. LBM had apparently already decided that JF had no need for this, yet the Assessment was silent on the topic. The only evidence as to the making of this decision was in a late-served witness statement made by a social worker, which simply stated that following a process of consultation and advice the decision was made . There was no further information as to when, how and by whom the decision was made . In those circumstances, it was not possible to determine whether LBM had had regard to the factors it was obliged to consider under the Care Act and the Associated Regulations. The Assessment was thus Wednesbury unreasonable and unlawful .
JF had also argued that the Assessment was unlawful because it failed to assess his likely needs in terms of his transition between placements and the likely resultant disruption. However, the court determined that an assessment under s9 CA 2014 was an assessment of “static current needs, not how such needs should be met or changed” , and therefore LBM’s failure to address such needs in the Assessment did not render it unlawful. JF’s needs in terms of transitioning did need to be taken account of under the general duty to promote his well-being under s1 CA 2014, but the time for doing so was as and when he was moved to another placement . Therefore, this obligation arose on the part of the responsible local authority at the time of producing Care and Support Plans as required by s24 and s25 CA 2014 .
Second Ground of Review
The court rejected LBM’s assertion that no final decision(s) had been made on JF’s future placement . Firstly, the Assessment, correspondence, the commissioning of the Report and JF’s parent’s visit to the Lodge, showed a decision had certainly been made to terminate JF’s placement at the College, “the combined effect of the language used and the steps taken [being] one of decision rather than undecided planning” [59(i)]. Secondly, it was similarly clear that a decision had been taken that the Lodge was suitable for JF’s needs [59(ii)].
Turning to the lawfulness of those decisions, the court determined that the decision to terminate JF’s placement at the College could not be said to be rational . It had been taken perhaps before the Assessment had been completed and certainly before the preparation of JF’s Care and Support Plans. “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” . The court had further ruled the Assessment itself unlawful. The decision to terminate JF’s placement at the College therefore could not stand.
It followed that the decision that the Lodge was suitable to meet JF’s needs was also unlawful, since those needs had not been lawfully assessed . Furthermore, while LBM might otherwise have been entitled to consider the Report in the course of assessing JF’s needs, they could not do so since Sussex Health Care had completed it before the Assessment was itself complete .
The court rejected an argument advanced by LBM that it had no power to quash a Care Act assessment [72-73]. Inter alia, the court therefore made the following orders:
- The Care Act Assessment was quashed.
- LBM’s decisions to terminate JF’s placement at the College and to assess the Lodge as suitable to meet JF’s needs were quashed.
- LBM was to undertake a further assessment of JF’s needs in accordance with the provisions of the Care Act 2014 and associated Regulations.
In light of the lack of authority surrounding assessments under the new Care Act, this is a significant decision. There is a useful statement of the statutory framework governing assessments set out in the judgment [25-32] culminating in the following summary:
Therefore, the central elements of the framework are (1) the “well-being” principle (2) the assessment of needs (3) making the arrangements to meet those needs and (4) in certain cases, identifying the adult’s personal budget. There is a clear statutory theme placing the individual at the heart and centre of the process so that he or she is fully involved in decision making. This is emphasised by the duty to have regard to the wishes and preferences of the individual.
This case demonstrates that decision-makers under the new statutory regime will be afforded the traditional margin of appreciation by the court, while amply illustrating that that tolerance will extend only so far as decisions pay regard to all of the relevant statutory criteria and the basis for the decision is adequately reasoned and evidenced. Should a Care Act assessment fail address the factors required by statute and provide some reasonable justification for its findings, it is amenable to quashing by the court on review.
The ruling underlines the importance for any local authority assessing needs under the Care Act 2014 and associated regulations to ensure the decision-making process is sufficiently thorough, and that the constituent steps and rationales are adequately logged throughout.
It also proves a cautionary tale against rushing into implementing changed care arrangements without first ensuring the appropriate formalities are observed. While the court did not need to determine whether LBM had been motivated purely by cost, it seemed clear that cost was “a very significant factor” . If this was the cause for any haste on LBM’s part, its actions may have ultimately caused it to incur very significant expense. LBM must undertake the assessment of JF’s needs anew, and, although the question of costs was left to be determined, it seems likely it will have to foot a substantial costs bill.
A link to the judgment can be found here.