Page 8 - Community Living Magazine 34-1

legal: overnight care
When providing night-time

support gets too much

The courts are changing their approach to how councils interpret the Care
Act. Family carers need to know how to assert themselves in light of two
court cases concerning overnight support, says Belinda Schwehr

he Administrative Court has review was issued, the court ordered arisen, because the mother could no
signalled a shift in its approach to 10 hours per day funded night-time care. longer reasonably be expected to do this,
Tcouncils’ approach to the Care Act. At the final hearing, the judge with the sole justifiable response being
Two recent cases related to night-time emphasised that “section 19(3) [of the the urgent interim care provision to allow
care given by family carers show that Care Act] empowers the local authority to for night-time carers. If it was urgent, its
family carers will benefit if they make a ‘meet an adult’s needs for care and refusal was unreasonable in a public
good case for themselves. support which appear to it to be urgent… law sense.
without having yet (a) carried out a needs Redbridge argued that “section 19(3) is
Support for urgent interim care assessment or a financial assessment, or only applicable before an initial statutory
The recent Ali Raja v Redbridge case (b) made [an eligibility] determination needs assessment has been conducted”
involved two adult men with severe under section 13(1)’ ”. and that what was needed was a review
physical and learning disabilities who lived The statutory guidance states that under section 27 and, “until that review
with their mother, H. “urgent” must take its everyday meaning, has been completed, the obligation on the
They had extensive night-time care and “where an individual with urgent defendant is to meet the claimants’ needs
needs, including having to be repositioned needs approaches or is referred to the as already assessed”.
numerous times to avoid pressure local authority, the local authority The local authority suggested that
damage. Back in 2017, H was not should provide an immediate response since the claimants had, throughout,
unwilling to do this single-handedly. and meet the individual’s care and nailed their colours to the mast of
In July 2019, the men sought urgent support needs… Following this initial section 19(3), the claim must fail for
interim night-time care as their mother’s response, the individual should be identifying the wrong power. It argued
health had declined and she said she informed that a more detailed needs that was the case, even if it was acting
could no longer cope with caring for her assessment, and any subsequent unreasonably in failing to provide urgent
two sons without support. processes, will follow.” interim care provision.
Reassessment was started but was The judge stated that the continuing Mr Justice Fordham disagreed, saying:
interminably drawn out and not and consistent central issue was whether “The fact that there is an existing care and
concluded. After an application for judicial an urgent night-time care need had support plan, to which the section 27

When it’s hard to continue: what family carers need to know

● ● If you are unwilling to carry under the Mental Capacity properly by the social always enough to say that
on with any specific aspect Act 2005 worker doing the assessing “x always happens” or “if
of care, for whatever ● ● If you cannot bear to say or care planning; outsiders’ we did x, then y would
reason, you must say so. you are unwilling, a carer views are not inevitably occur”
However painful this may can say they can no longer determinative but must be ● ● Unpredictable needs
be, it is the answer when a reasonably be regarded properly considered and cannot often be met
council pressurises you to as being physically or factored in as relevant with a set number of hours
do more and more psychologically able, given considerations a day; generally, this means
● ● The consequence may well the evidence available ● ● Detailed reasons for a it may be necessary to
be that the cost of the care about deterioration council’s disagreement will pay a family carer in the
package at home is pushed ● ● If you are getting close to not always be required but same household out of a
above what a council wants being unable to carry on, there must be an evidence direct payment
to pay. However, the but still not willing to say a basis upon which they ● ● Pending the conclusion
council can only move a flat “no”, you must get could be seen to rely and of a reassessment or
person out if that is lawful independent expert which could objectively review, urgent needs can
in Care Act terms; that is a evidence – it will be worth justify this disagreement be provided for and
public law question, which it. You are entitled to ask ● ● Family carers have to have sometimes must be if
is not quite the same as for the opinions from evidence as much as the there is no other way to
the best interests one experts to be addressed council does – it is not meet them

8 Vol 34 No 1 | Autumn 2020 Community Living www.cl-initiatives.co.uk