QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| LOUISA G
(by her litigation friend Linda G)
|- and -
|THE MAYOR AND BURGESSES OF
THE LONDON BOROUGH OF WANDSWORTH
Miss E Laing (instructed by DMH) for the Defendant
Hearing dates : Tuesday 24 November 2003
Crown Copyright ©
Mr Justice Beatson :
The Statutory and Regulatory Framework
"….where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority –
a) shall carry out an assessment of his needs for those services; and
b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."
"(1) Subject to and in accordance with the provisions of this part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing –
(a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them….
(2) In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection…."
"Arrangements must not be made by virtue of this section for the provision of accommodation together with nursing or personal care for persons such as are mentioned in Section 3(2) of the Care Standards Act 2000 (Care Homes) unless –
(a) the accommodation is to be provided, under the arrangements, in a care home (within the meaning of the Act) which is managed by the organisation or person in question;
(b) that organisation or person is registered under Part II of that Act in respect of the home."
"Subject to Section (1D) below no arrangements may be made by virtue of this section for the provision of accommodation together with nursing without the consent of such primary care trust or health authority as may be determined in accordance with regulations."
Section 26(1D) deals with emergencies and is not relevant to the present case.
"(1) Nothing in the enactments relating to the provision of community care services shall authorise or require a local authority, in or [in] connection with any such services, to –
(a) provide any person with, or
(b) arrange for any person to be provided with
nursing care by a registered nurse
(2) In this section "nursing care by a registered nurse" means any services provided by a registered nurse and involving –
(a) the provision of care, or
(b) the planning, supervision or delegation of the provision of care,"
other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse.
"Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."
"The individual service user and normally, with his or her agreement, any carers should be involved throughout the assessment and care management process. They should feel that the process is aimed at meeting their wishes." (paragraph 3.16)
"Once needs have been assessed, the services to be provided or arranged and the objectives of any intervention should be agreed in the form of a care plan. The objective of ensuring that service provision should, as far as possible, preserve or restore normal living implies the following order or preference in constructing care packages which may include health provision, both primary and specialist, housing provision and social services provision:
- support for the user in his or her own home…..
- a move to more suitable accommodation…..
- a move to another private household….
- residential care
- nursing home care
- long stay care in hospital."
"Care management makes the needs and wishes of users and carers central to the caring process. This needs–led approach aims to tailor services to individual requirements." (paragraph 19)
"with local councils with social services responsibilities and agree local arrangements for the implementation of free NHS nursing care in nursing homes from October 1 2001. They also need to agree arrangements for transferring responsibility for care by a registered nurse from councils to the NHS for existing and future residents who receive council support from April 1 2003."
(1) Defective process: the Defendant did not comply with the requirement in the Policy Guidance that carers should be involved throughout the assessment and care management process
(2) Failure to apply its own policy
(3) Rigid adherence to a mistaken view of policy and the law
(5) Failure to take account of relevant considerations
(6) Unlawful delegation
(7) Decision unsupported by evidence