England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		5th March 2009

1. THE DEPUTY HIGH COURT JUDGE: This is an application for permission and, if permission is granted a claim for judicial review, by the claimant, Elaine McDonald, a 65-year-old former principal ballerina with the Royal Ballet, against the decision on part of the defendant, London Borough of Kensington and Chelsea, to withdraw night-time care to the claimant and to limit her care package to £450 a week.
2. The claimant submits that in acting that way the defendant is failing to meet the defendant's assessed and eligible needs, and is acting unlawfully and unreasonably. Further, she submits that the defendant's action will cause her to suffer indignity which will amount to an interference with her right to respect for her private life and be in breach of Article 8 of the European Convention on Human Rights.

The factual background

3. Sadly the claimant suffered a stroke in September 1999, which left her incapacitated, with reduced mobility and strength on the left side of her body. She wears a fitted splint on her left leg and foot and uses a wheelchair when outside her home. When walking the claimant will experience a freezing effect in her left foot and has experienced a number of falls. After her discharge from hospital, after the initial stroke, until 2006 the claimant's partner provided the majority of care for her, with supplemental services being provided by the defendant. In April 2006 the claimant had a severe fall at night, when she broke her hip in several places. She was admitted to hospital, where she contracted MRSA and clostridium difficile. She remained in hospital until August 2006.
4. On discharge, the claimant says that adequate night-time care was not put into place and, as a result, she fell again and was admitted to hospital a few days later. By that time the strain of providing care for the claimant became too much for her partner, Mr Donald McLeish, who was himself admitted to hospital. Upon his discharge from hospital in October 2006 he was rehoused and has lived apart from the claimant since then.
5. On 13th November 2006 the claimant, who by that time had been discharged from hospital, suffered a further fall at home at night and was again admitted to hospital. As part of her hospital discharge planning process, an application was made to the Independent Living Fund to obtain full day and night-time support for the claimant. The claimant was discharged from hospital on that occasion on 12th March 2007, with an interim care package, which included 70 hours of night-time care at 10 hours a night, from 10.00 pm until 8.00 am, by the defendant. That package was to be a short-term provision by the defendant whilst the Independent Living Fund application was resolved. In fact, on reaching the age of 65, the claimant was no longer eligible to receive funding from the Independent Living Fund.

On 19th February 2008 the defendant's older persons services carried out an assessment of need on the part of the claimant. Within that assessment, Ms McDonald's view was described as follows:

"Ms McDonald wanted to emphasise that she requires assistance with all transfers and when she mobilises. Ms McDonald requested night care in order [for] someone to assist her with using [the] commode during the night. This is because Ms McDonald does not wish to use incontinence pads and sheets."

6. There was a summary of the needs assessment on that occasion. Two points are relevant. The first is that it was recorded that Ms McDonald needs supervision when transferring — that was a substantial need — and the second is that Ms McDonald needs assistance to use the commode at night. Again, that was a substantial need.
7. Within the "physical well-being" section of the assessment it was recorded that Ms McDonald's GP, Dr Parameshwaran, reports that Ms McDonald has a neurogenic bladder. This condition can cause either retention of urine or frequency of urine. Ms McDonald experiences frequency of urine.
8. In terms of the psychological well-being, the February 2008 assessment recorded that Ms McDonald's sleep was interrupted as she needed to use the commode at night. This was due to having a small bladder and frequent urinary tract infections. Ms McDonald reported that she had to use the commode about three times at night.
9. Within the overall impact of current needs the following was set out:

"Ms McDonald needs supervision to walk to the toilet.

Ms McDonald can maintain her independence, reduce the risks of falls and avoid the use of incontinence pads if the carers arrive on time."

10. Towards the end of that assessment there was a summary of the key problems/needs, the seventh of which was "Ms McDonald needs assistance at night to use the commode", which was described as being a moderate need.
11. A further needs assessment commenced on 2nd July 2008, and was signed off on 28th October 2008. Within that document, in terms of the summary of needs assessment, it was noted, first, that Ms McDonald needs supervision when transferring, which was a substantial need and, secondly, that Ms McDonald needs assistance to use the commode at night, which was also described as a substantial need. In terms of the assessment decision, it was recorded that Ms McDonald was eligible for services, following the assessment.
12. A meeting took place between the claimant and the defendant on 17th October 2008. At that meeting, which was attended by a range of people, including Ms McDonald, her former partner and an advocate on her behalf, there was a discussion about her needs and during the meeting a copy of the needs assessment was distributed by Mr Brown, who was then employed as service manager on the part of the defendant.
13. In the minutes of the meeting it is recorded that an offer of some £450 a week was made to Ms McDonald for an independent budget, but that was from the previous assessment. It was further noted that the amount had not been confirmed because it was based on a previous assessment. Therefore, it was not regarded as a final figure, although Mr Brown was clear that it acknowledged that there was some funding for night-time care. At that meeting the claimant was informed that, in terms of her night-time care, that was proposed to be reduced.
14. On 17th November 2008 the defendant produced a care plan for the claimant. Within that care plan, the needs for which had been assessed as part of the comprehensive needs assessment it was set out that Ms McDonald needed assistance to use the commode at night, and that that was a substantial need. So, too, was set out the weekly cost of home care provision at the sum of £703.59.
15. On that day the defendant sent an e-mail to the claimant saying that it would begin to reduce her night-time care as from 21st November 2008. That was followed by a letter dated 21st November 2008, from the defendant, which repeated the advice at the meeting, which was that the amount allocated to her care would be £450 a week and continued:

"As stated at the meeting, the rationale behind the planned reduction is that we consider the current provision to be in excess of that required to meet your eligible needs under the Council's fair access to care services criteria. The Council has a duty to provide care, but we must do so in a way that shows regard for the use of public resources."

Later on in that letter the following was set out:

"This planned reduction is being initiated by us in the manner proposed only because you have not been forthcoming in offering alternative suggestions."

16. As a result of that a pre-action protocol letter was sent to the defendant on 27th November 2008. The defendant responded on the following day.
17. Within the letter responding, the Council made it clear that it was relying upon the Community Care Act assessment conducted on the 2nd July 2008, to which I have referred earlier; and that it was basing its services to meet the currently assessed level of need upon that needs assessment.

On 3rd December 2008 the night care scheme was withdrawn for 4 nights during the week by the defendant so that the current position is that the claimant continues to receive 3 nights' night-time care from the defendant.

The legal framework

18. So far as the legal framework is concerned, this is not in dispute between the parties. Section 47 of the National Health Service and Community Care Act creates a statutory duty on local authorities to assess those who appear to be in need of community care services. Under section 47(1)(a) of that Act local authorities must carry out an assessment wherever there is an appearance of need. Under section 47(1)(b) local authority services must make a service provision decision to meet a need once assessed.
19. So far as community care services are concerned, which a local authority can provide to meet the needs assessed under section 47 of the Act, they are defined by section 46(3) as including services provided under Part III of the National Assistance Act 1948. There is a duty on local authorities, under section 29 of the National Assistance Act 1948, which is in Part III, to meet the needs of disabled persons. Although not included in the list within section 46(3) of the 1990 Act, services pursuant to section 2(1) of the Chronically Sick and Disabled Persons Act 1970 are, in that subsection, described as being provided under section 29 of the 1948 Act and are to be considered community services.
20. Section 2(1) of the Chronically Sick and Disabled Persons Act provides:

"Where a local authority having functions under section 29 of the National Assistance Act 1948 is satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters...

[There follows a list of matters that may be provided for such a person].

then... it shall be the duty of that authority to make those arrangements in the exercise of their functions under the said section 29."

21. The list of services in section 2(1) of the Chronically Sick and Disabled Persons Act 1970 includes, so far as is relevant to these proceedings, under 2(1)(a), the provision of practical assistance for that person in his home.
22. In providing that the defendant must act in accordance with the Department of Health guidance, "Fair access to care services" ("FACS"). The local authority is bound to follow the policy guidance unless it can provide clear and adequate reasons for not doing so.
23. So far as the FACS guidance is concerned, the most relevant paragraph in relation to these proceedings is paragraph 52, which reads as follows:

"Councils are also reminded that they may take their resources into account when drawing up their eligibility criteria against which they assess individuals' needs, and when deciding which services will be provided to meet those needs. However, this does not mean that councils can take decisions on the basis of resources alone. Once a council has decided it is necessary to provide services to meet the eligible needs of an individual, it is under a duty to provide those services."

24. The duty to meet the eligible and assessed need has been considered by the House of Lords in the well-known case of R v Gloucestershire County Council ex parte Barry [1997] AC 584. Within the judgments, Lord Clyde said at page 610B:

"The right given to the person by section 2(1) of the Act of 1970 was a right to have the arrangements made which the local authority was satisfied were necessary to meet his needs. The duty only arises if or when the local authority is so satisfied. But when it does arise then it is clear that a shortage of resources will not excuse a failure in the performance of the duty."

The submissions

25. The claimant submits that the defendant has assessed the claimant's needs as including the need to use the commode at night as being above the threshold for substantial need, as set out within their "Fair access to care services" eligibility criteria. I should add that the defendant has assessed needs within its administrative boundaries as within critical, substantial and moderate risk bands.
26. Under section 47 of the 1990 Act, and the statutory guidance, the claimant submits that the defendant has a duty to provide an adequate care package to meet the claimant's needs, and by withdrawing night-time care to the claimant and limiting the cost of the care package that will be provided to £450 the defendant is acting unlawfully and unreasonably.
27. Further, the withdrawal of the night-time service has exposed the claimant to risk and indignity, and imposed care and responsibilities on to Mr McLeish, who, the defendant accepts, is unable to cope and care for the claimant. As a consequence, Article 8 is engaged and, it is submitted, the defendant is in breach of it.
28. Reference was made to the case of Bernard v London Borough of Enfield [2002] EWHC 2282, although Mr Cragg, on behalf of the claimant, accepts that the circumstances in the instant case are nowhere near as severe as they were in that case.
29. The defendant submits, firstly, that resources can be taken into account in meeting an assessed need where it is possible to meet that need in more than one way. In those circumstances, the defendant is entitled to choose the most economic form of provision. In support of that submission, the defendant refers to the decision of Jowitt J in R v Sefton Metropolitan Borough Council, ex parte Help the Aged [1997] 3 FCR 392, and in particular to that part of the judgment at page 401A-B, where Jowitt J said:

"... once a local authority conclude in a particular case that the need which triggers their duty under section 21(1)(a) exists, they must provide Part III accommodation of a kind which will meet the need for care and attention which arises in that case. They cannot at that stage parade their own lack of resources as an excuse for failing to make the necessary provision, though of course, they are entitled to take that factor into account in deciding how they meet the need by the provision of Part III accommodation, provided it meets that need."

30. Although that judgment was overturned in the Court of Appeal, it is submitted that there has been no criticism directed towards it in relation to that dicta. Indeed, in the case of R v Kensington and Chelsea London Borough Council, ex parte Kujtim Potter LJ remarked that the Court of Appeal had impliedly approved the words of Jowitt J.
31. The defendant also relied on the case of R v Kirklees Metropolitan Borough Council, ex parte Daykin [1998] 1 CCLR 512. Within that judgment, Collins J said at page 525:

"But one has to differentiate between what are needs and what are the services to meet those needs because, as the case of Barry, which I have already cited, makes clear, financial considerations cannot enter into the assessment of needs whereas they can enter into the question as to how those needs are to be met. Once the needs have been established, then they must be met and cost cannot be an excuse for failing to meet them. The manner in which they are met does not have to be the most expensive. The Council is perfectly entitled to look to see what is the cheapest way for them to meet the needs which are specified.

In the context of section 2 of the 1970 Act, it is not always easy to differentiate between what is a need and what is merely the means by which such need can be met. I say that because if one looks at the judgments in the Barry case one sees that Swinton Thomas LJ at page 439 pointed out that some of the matters in section 2(1) of the 1970 Act may be regarded as themselves needs as opposed to the means of meeting the needs. For example, he says, if the need is a provision for the TV set (that is within section 2(1)(b)) that need can be met by the provision of a new or a second-hand set. It may be said that the need is a need for contact with the outside world in some form or another and that the television set provides that contact. Thus the television set is the means whereby the need is to be met. If one returns to the wording of section 2, it talks about the 'making of arrangements for all or any of the following matters in order to meet the needs of that person' which on the whole suggests that one is looking to the matters set out in A to H more in terms of the way in which the needs are to be met rather than the needs themselves, although that is not necessarily an entire guide. So far as the circumstances of this case are concerned, it seems to me perfectly clear that the needs that have led to the question about the provision of a stair lift are the needs for the applicants to be able to get in and out of the premises. Those are the relevant needs. They can be met, as it seems to me, either by removing them to other premises where access is possible for them, which in the context of this case, would be ground floor premises, or adapting the existing to provide a stair lift.

It is, in my judgment, impossible to regard the provision of a stair lift at home as 'the need'. In those circumstances, it is open to the local authority to reconsider the way in which those needs can be met provided that there has been no positive decision to meet them in a particular fashion. I say 'provided there has been no positive decision', but of course such a decision itself could itself be changed upon reconsideration. One must always bear in mind that it is the duty of the authority to meet the needs and that means to meet them as soon as is reasonably practical. It does not mean that the authority is entitled to sit on things and debate with itself for a substantial period of time. Once they have identified after discussion the manner in which those needs are to be met, then the Act requires that they get on with it and meet those needs. But it seems to me that they are entitled to the flexibility as to how those needs are to be met."

32. Thus, the defendant submits, there is a substantial need here, which it accepts, and that is the presence of harm to the claimant at night. The provision of a night-time carer, though, is not the only way of meeting that need. As to the provision of the £703 referred to in the care plan, the defendant informs that that reflects the then current (in other words, the amount that was being paid as at 17th November 2008) care package. Thus, it was submitted, there is no inconsistency between the needs assessment and the care plan on the part of the defendant as the defendant had put forward an alternative and realistic solution.
33. So far as Ground 2 was concerned, and the Article 8 points, the defendant's argument was that the Article 8 was not engaged because the local authority had provided for the claimant in a proportionate way. But if the article was engaged, then there was a complete answer to it. Four points were relied upon. Firstly, there was no lack of respect for the claimant's private life, because the defendant had sought to engage with her about the best use of her package, but she had failed or refused to discuss it with officers. Secondly, the use of incontinence pads, whilst clearly not an ideal solution, would be a proportionate means of preventing further injury, having regard to the interests of the claimant and the substantial costs savings to the local authority, which can be passed on to others needing community care services. Thirdly, the use of pads avoids or reduces the need for a carer to be in the claimant's home at night, which could of itself be seen as an interruption of her private home life. Fourthly, any breach of Article 8.1 would, in any event, be justified on the grounds of the greater economic well-being of the local authority.

The decision

34. The fundamental issue here is: what is the assessed need? Whatever it is, the defendant is obliged to meet it based on the application of the FACS criteria and its own eligibility criteria. It follows that at the end of the day there is a very narrow issue before me. The July needs assessment, which was carried out, and to which I have referred, described the need as being "needs assistance to use the commode at night". The issue is whether that is to be taken literally, which would give rise to the claimant requiring assistance by way of a night-time carer, or whether one is to examine the underlying problem of need that gives rise to that assessment.
35. As the judgment of Collins J in Daykin makes clear, in the circumstances of that case it was impossible to regard the provision of a stair lift at home as the need. It was the need to be able to get in and out of the premises, in that case, which was actually the need. Likewise, in this case, in my judgment, it is right to examine the underlying rationale for what is described as the assessed need. Here it is the consequence of the claimant's neurogenic bladder which means that she experiences frequency of urine. Because of that, she needs to get up and use the commode. Because of her physical impairment and frailty, she cannot do that without assistance, or she is exposed to a real risk of injury, as has happened in the history that I have set out, with serial hospital admissions as a result of her falls. The core need, then, is the safety of the claimant, in my judgment.
36. In my judgment, there are two ways of meeting that need: either the night-time carer or the provision of incontinence pads, which would avoid the claimant having to use the commode on repeated occasions during the night. The defendant authority is quite entitled, in those circumstances, to meet the need in the most economic manner. The statutory scheme which requires that those needs are met entitles the defendant authority to some flexibility about how that is to be done.
37. Ground 2, Article 8, is accepted, quite rightly, by Mr Cragg to be parasitic upon Ground 1 being established and, therefore, does not raise issues that now need to be gone into.
38. The defendant raised in its summary grounds of resistance, at paragraph 17, the point that the needs assessed here could be met in a variety of ways and that, in those circumstances, it was permissible to elect the most economical way of so doing. Some of the decided case law was referred to also. It follows that in those circumstances I refuse the grant of permission to bring judicial review proceedings here.
39. MR RUTLEDGE: Thank you, my Lady. There is an application for costs.
40. THE DEPUTY HIGH COURT JUDGE: Yes.
41. MR RUTLEDGE: I should say that the claimant is not publicly funded. Notice was given at the outset of the proceedings that she was instructing her lawyers on a no win no fee basis. A number of letters were written ascertaining the nature of that arrangement, and only recently were we told that it there was a CFA, but we have not seen it. I think a costs summary has been lodged with the court.
42. THE DEPUTY HIGH COURT JUDGE: From you, yes, it has. I received that. That is what I was looking for.
43. MR RUTLEDGE: Whether my Lady would wish to summarily assess -- I would invite you to do so, subject to the principle of costs, of course.
44. THE DEPUTY HIGH COURT JUDGE: I will hear what Mr Cragg has to say.
45. MR RUTLEDGE: Thank you.
46. MR CRAGG: On the question of costs, this is a case which has been brought by the claimant in extremis, in her view, and without an explanation, until today, as to the nature of the care plan in this case. Our submission is that the defendant should only be entitled to a proportion of its costs. Either that, or no costs order made, given the situation that the claimant has found herself in. Those are the submissions that I make. We have made it clear that the issue of the care plan was at the top of our list and it was not mentioned at all in any of the submissions which have been before the court.
47. THE DEPUTY HIGH COURT JUDGE: It was mentioned, was it not, by Mr Rutledge, when I asked him and he accepted it?
48. MR CRAGG: This morning.
49. THE DEPUTY HIGH COURT JUDGE: Yes.
50. MR CRAGG: Before today.
51. THE DEPUTY HIGH COURT JUDGE: Oh, before today. Quite right. It was not in the skeleton argument.
52. MR CRAGG: So we would say that this is an appropriate case for either a reduced order or no order for costs. I would have thought that probably a detailed assessment, if any costs are being awarded, would be the most appropriate way of dealing with it.
53. THE DEPUTY HIGH COURT JUDGE: I do not think it is appropriate for detailed assessment, given the nature of the issue involved and the time that it has taken.
54. Is there anything else you want to say, Mr Cragg?
55. MR CRAGG: I have seen the schedule of costs. It is very high, in our submission. It has been a fairly short hearing on the defendant's side, the submissions have been fairly short and it does seem very high. On costs, those are all the submissions I have.
56. THE DEPUTY HIGH COURT JUDGE: Thank you.
57. I think in relation to the issue of costs I bear in mind that the claimant and the defendant are still subject to an ongoing relationship, which will continue after today, come what may, in terms of the provision of care. In those circumstances, my judgment is that the defendant should receive a small proportion of its costs only. It is right that it should receive something, given the judgment that I have just given, but that is the reason for my assessment. I assess that the claimant should pay the defendant the sum of £2,000.
58. MR CRAGG: My Lady, I hesitate to rise again. I have just realised that what your Ladyship said at the end of the judgment is that permission to apply for judicial review has been refused.
59. THE DEPUTY HIGH COURT JUDGE: Yes.
60. MR CRAGG: I am not sure whether that affects the question of costs, given that the usual rule is that the defendant only be entitled to the acknowledgment of service.
61. THE DEPUTY HIGH COURT JUDGE: You are quite right to remind me.
62. MR CRAGG: It is a difficult situation, given that it is a rolled-up hearing.
63. THE DEPUTY HIGH COURT JUDGE: It is a rolled-up hearing, but yes.
64. MR CRAGG: If we have only got as far as being refused permission, from a costs point of view, then unless it is being said that it is a hopeless case --
65. THE DEPUTY HIGH COURT JUDGE: No, I hope that was clear from my judgment — I was not saying it was a hopeless case at all. You are right to remind me. We had set off — I am not criticising Mr Rutledge at all — slightly on the wrong foot. I am going to ask Mr Rutledge what his position is, then I will come back to you, Mr Cragg.
66. MR RUTLEDGE: My Lady, as my friend said in relation to another procedural aspect of the case, the rules really go out of the window in relation to a rolled-up hearing. In my submission, Mount Cook should not be applied strictly where there is a full hearing. If the bar is to be put to the expense of preparing evidence, detailed grounds and skeleton argument, it would be inequitable, in my respectful submission, to limit its costs to the summary grounds. We are entitled, in any event, to those. I think there was a schedule attached to the acknowledgment of service, but in my respectful submission, if I may say so, my Lady struck the right balance when she exercised her powers under the CPR and decided to make a partial costs order. That reflects the fact that the borough and its taxpayers have been put to the expense of defending this as a full hearing, with the matters which my Lady quite properly took into account. So in my respectful submission the court could and should go beyond the cost of the summary procedure.
67. THE DEPUTY HIGH COURT JUDGE: Mr Rutledge, I cannot find the costs assessment in relation to the acknowledgment of service.
68. MR RUTLEDGE: May I take instructions?
69. THE DEPUTY HIGH COURT JUDGE: It is not itemised on the list which has been handed up.
70. MR RUTLEDGE: My Lady, I am so sorry if that is the case. At page 30 of tab A, at the end of my summary grounds, I refer to Mount Cook.
71. THE DEPUTY HIGH COURT JUDGE: But it is not there, is it?
72. MR RUTLEDGE: May I just check?
73. THE DEPUTY HIGH COURT JUDGE: Yes. It is not in my bundle, anyway.
74. MR RUTLEDGE: My instructions are my solicitor cannot recall filing it. So if it is not in the bundle and he cannot recall it, I am in difficulty.
75. THE DEPUTY HIGH COURT JUDGE: I do not have it and neither have you.
76. MR RUTLEDGE: In any event, in my respectful submission, on the Mount Cook principle, the borough is entitled to its costs of preparing that.
77. THE DEPUTY HIGH COURT JUDGE: You are certainly entitled to those, but we do not know what those are, unless your solicitor can tell you. I am happy for you to take oral instructions on that, Mr Rutledge.
78. MR RUTLEDGE: I am much obliged. (Pause). My Lady, my fee was £700 and the borough is prepared to limit it to that for the sake of convenience. I can hand up a fee note, if it assists.
79. THE DEPUTY HIGH COURT JUDGE: No, I am quite happy to take it from you. £700. Thank you. Yes, Mr Cragg?
80. MR CRAGG: I think if those are the limits of the costs which Ms McDonald is exposed, I would not object to that.
81. THE DEPUTY HIGH COURT JUDGE: Thank you very much. Anything else your want to say, Mr Rutledge?
82. MR RUTLEDGE: My Lady, no.
83. THE DEPUTY HIGH COURT JUDGE: Having given my decision on costs, I was quite rightly reminded by Mr Cragg that in fact I had refused permission to bring judicial review proceedings. It is right, as Mr Rutledge reminds me, that we have in fact had a hearing, which would have been no different had it been the substantive hearing. Having said all of that, and reminded myself, as I said, in my judgment, that the parties here have an ongoing relationship, I think on more mature reflection that it is right that the claimant pays to the defendant the sum of £700 in respect of the acknowledgement of service. That is the order that I make.
84. MR CRAGG: I am grateful. So far as permission to appeal is concerned, there is a point in this case about what underlying need is, it seems to me. I do not think one would usually seek permission to appeal at the end of a permission hearing, but given that your Ladyship has given a full judgment on the issue, I would apply for permission to appeal in this case, on the basis that the Court of Appeal might reach a different conclusion.
85. THE DEPUTY HIGH COURT JUDGE: I cannot recall at the moment whether it would be normal to make an application at this stage or not, but anyway, if it is, I refuse that application. It seems to me that in the light of the judgment in Daykin, in particular, there is no realistic prospect of success and you will have to go elsewhere.
86. MR CRAGG: I am grateful.
87. THE DEPUTY HIGH COURT JUDGE: Thank you both very much.