Page 9 - Community Living Magazine 34-1

legal: overnight care

function of review and revision is goes entirely against the view of
applicable, does not exclude any Professor S, and I do not consider that
application of section 19(3)… Urgent criticising a view so directly opposite to
needs, pending assessment, would be that of an expert can be described as
met not by urgent revision of the plans ‘overzealous textual analysis’. It amounts
but by urgent meeting of needs by way of in my view to a failure to factor in and
provision of care and support.” give consideration to a material piece
He added, however, that local of evidence.
authorities also had the power to take “The assessment under challenge does
urgent action pursuant to section 27: not identify any evidence upon which the
“An urgent revision to a care plan could assessor relied in considering that the
be made, and that could have been On call: unpredictable needs at night may not matter could be resolved simply by the
done in the present case. That could, be met by providing two hours of daily care claimant being encouraged to go back to
moreover, be especially important if sleep rather than being brought
there is a situation where there is why she could no longer be expected to downstairs until she settled again.”
something temporary and urgent but cope with the physical demands, saying: “I He concluded: “Limitation of additional
where everyone agrees that there is cannot physically do it any more.” funding for two hours a day is irrational…
no question of carrying out a further H never said she was unwilling but the the claimant suffers from both urinary
section 9(1) assessment.” judge was underlining that there was and faecal incontinence. She therefore
He stated: “In my judgment, the expert evidence that she could not reasonably be requires showering not only at regular
reports put forward could not reasonably regarded as able, even if she was willing. times in the morning but at unpredictable
be regarded as failing to ‘stipulate’ that The court was shown no document that times in the day and night… that need is
the additional night-time care and support addressed the question of whether the not answered by a provision limited to
was ‘required’ or ‘urgent’. The key reason mother could reasonably be expected to two hours a day.
given in legal services’ letter focused on reposition her sons at night single- “I have no doubt that Mr C carried out a
the use of the language: ‘would benefit handedly; however, the council had conscientious evaluation of the claimant’s
from…’. However, a full and fair reading of concluded that she could. circumstances but there were material
the reports show that they went far pieces of evidence which he did not take
beyond recommending a course as being Failure to consider expert evidence into account in coming to the conclusions
beneficial or optimal. In the case of JG v Southwark, a mother that he did and… the assessment is as a
“Nothing in the documents provides represented her daughter on a challenge consequence unlawful.”
reasonable support for any conclusion to removing eight hours of interim night
that the mother could reasonably be care, having obtained copious amounts of Courts seeing lawlessness
expected to reposition the sons at night, privately funded expert evidence to Family carers should take note of the
single-handedly. support the stance that it was needed. important principles emerging from these
“Indeed, I have been able to find no Southwark Council’s assessor/care cases (see box).
evidence that the defendant – and planner, described as undoubtedly We think that local authorities’ legal
certainly anyone with decision-making conscientious, did a thorough job, teams may be overlooking the fact that
responsibility – asked itself that question disagreeing with the experts’ views, and the courts will have been taking note of
and, if they did, as to how they answered hinting politely that the family were increasing lawlessness in Care Act
that question. It follows that I do not perhaps holding the client back, rather decision-making: witness the upturn in
accept [the council’s] submission that than focusing on what non-adherence to upheld complaints to the Local
there was no unlawfulness as at the date a positive support behaviour plan could Government and Social Care Ombudsman
when proceedings were commenced.” be doing in terms of generating or at least (68% now succeeding in the adult social
Redbridge also argued that night-time habituating challenging behaviour. care field) and the number of those in
care was not urgent because documents Southwark ultimately lost this case, which the council is simply said to have
showed that the mother continued to however, because the assessor/care been acting outside the Care Act, or
reposition her sons herself at night-time, planner repeatedly omitted to address unlawfully, in light of clearly established
even with two carers in the house. It said credible assertions altogether. principles of public law. n
H had reported that she was “always It is true that courts are reluctant to
present at night, and offers additional subject social workers’ analyses to Belinda Schwehr is chief executive of legal
support”, and “she often sleeps next to over-zealous textual scrutiny. Here, advice charity CASCAIDr (www.CASCAIDr.
[the second claimant], in order to offer though, the irrationality challenge org.uk) and owner of Care and Health
him night-time support”. succeeded because there was not merely Law, a consultancy. She has been a
“Before we had overnight carers, I disagreement but omission to address barrister, solicitor advocate, presenter,
would be solely responsible for providing obviously relevant and credibly asserted writer and university law lecturer
any support, apart from during periods of considerations about the woman’s needs.
respite. However, I still choose to assist Allen J said: “He failed wholly to References
the workers when they provide physical take account of central evidence from Ali Raja and Anor, R (on the application of) v
support,” H had said. behaviour experts as to the limited London Borough of Redbridge [2020] EWHC
Christy Lawrance their view that H could meet her sons’ management. JG, R (on the application of) v London Borough
scope for any improved behavioural
The council argued that this supported
1456 (Admin). https://tinyurl.com/y26fqo43
He added that “describing her as being
night-time needs. However, she explained
of Southwark [2020] EWHC 1989 (Admin)
https://tinyurl.com/yxzhytd2
‘far from being described as an insomniac’
to the court (using evidence from her GP)
www.cl-initiatives.co.uk Community Living Vol 34 No 1 | Autumn 2020 9