R (Davey) v Oxfordshire County Council – to what extent should an individual's preferences for care be considered?
In a recent decision the Administrative Court has ruled on the extent to which a local authority must consider the preferences of a service user for how their care is provided when setting their personal budget. In what is thought to be one of the first cases on the wellbeing provisions of the Care Act 2014, Mr Justice Morris found that, while the Claimant's preferences had to be taken into account, these had to be distinguished from his needs for care.
The Claimant was a 40 year old man with severe quadriplegic cerebral palsy and severe visual impairment. Since the age of 21 he had lived in his own bungalow with a team of carers providing, with the exception of two hours a week, continual support paid for out of his personal budget. Until June 2015 this care was funded jointly by the Independent Living Fund ("ILF") and the NHS. When the ILF closed the Claimant's care was funded entirely by the Defendant local authority. As part of a reassessment the Defendant reduced the Claimant's personal budget from £1,651 to £950 a week, on the basis that he could spend more time without carers and their wages could be reduced. The Claimant sought judicial review of this decision on the basis that it breached the requirements of the Act and/or was Wednesbury unreasonable.
A key point of both parties' submissions was the principle in Section 1 of the Act that "the general duty of a local authority… is to promote that individual's well-being." This involved having regard to all the individual's circumstances, but according to Morris J was "a duty, when taking decisions, to have regard to each person's particular individual circumstances and not to make generalised assumptions bases on characteristics such as age, physical condition etc." Particularly, while the care user's needs had to be met, it was important to distinguish between their needs and wishes. While the Claimant was understandably disappointed that his time without a carer may be increased, provided that his needs were met it was not within the Defendant's responsibilities to meet all of his wishes.
Morris J found that the role of the local authority was to make an assessment of needs to decide whether care could assist the care user in reaching their objectives, but it did not have a duty to meet all of the care user's desired outcomes. As part of this the care user must be involved in the making of their care plan, and the local authority must take all reasonable steps to reach agreement with the care user. However, there was no outright duty to reach an agreement if this was not possible after taking reasonable steps. As such, while the care user's wishes must be considered as part of the local authority's decision, this did not mean that these wishes constituted the 'final say' in the agreement.
The decision also provides a useful summary of the court's role in reviewing social care assessments. Based on previous cases, Morris J stated that:
"The courts should be wary of overzealous textual analysis of social care needs assessments carried out by social workers for their employers with the risk of taking them away from front line duties."
"It is not for the Court to be prescriptive as to the degree of detail in an assessment or a care plan - these are matters for the local authority, and if necessary, for its own complaints procedure or resort to the Secretary of State. The court is the last resort where there is illegality."
"The social worker, in the assessment, is entitled to rely upon what the service user told him at the time (even if the service user later changes evidence); there is no need for precise formulation of assessment of mental health impact in the needs assessment itself."
Morris J made it clear throughout that he had a great deal of sympathy for the Claimant in the extent of the cut to his budget that was being proposed, however this was not sufficient to overrule the local authority's decision. While the care user's preferences always had to be taken into account, local authorities are able to distinguish between preferences and needs, as long as this is done carefully and with clear reasons.
Local authorities, and all decision makers involved in health and social care, are given some leeway in this decision, but any planning on making use of this decision will need to think carefully how they distinguish needs from wishes and set this out carefully in their decisions.