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.

The Administrative Court has signalled a shift in its approach to councils’ approach to the Care Act. Two recent cases related to night-time care given by family carers show that family carers will benefit if they make a good case for themselves.

Support for urgent interim care

The recent Ali Raja v Redbridge case involved two adult men with severe physical and learning disabilities who lived with their mother, H.

They had extensive night-time care needs, including having to be repositioned numerous times to avoid pressure damage. Back in 2017, H was not unwilling to do this single-handedly. In July 2019, the men sought urgent interim night-time care as their mother’s health had declined and she said she could no longer cope with caring for her two sons without support. Reassessment was started but was interminably drawn out and not concluded. After an application for judicial review was issued, the court ordered 10 hours per day funded night-time care.

At the final hearing, the judge emphasised that “section 19(3) [of the Care Act] empowers the local authority to ‘meet an adult’s needs for care and support which appear to it to be urgent… without having yet (a) carried out a needs assessment or a financial assessment, or (b) made [an eligibility] determination under section 13(1)’ ”.

The statutory guidance states that “urgent” must take its everyday meaning, and “where an individual with urgent needs approaches or is referred to the local authority, the local authority  should provide an immediate response and meet the individual’s care and support needs… Following this initial response, the individual should be informed that a more detailed needs assessment, and any subsequent processes, will follow.” The judge stated that the continuing and consistent central issue was whether an urgent night-time care need had arisen, because the mother could no longer reasonably be expected to do this, with the sole justifiable response being the urgent interim care provision to allow for night-time carers. If it was urgent, its refusal was unreasonable in a public law sense.

Redbridge argued that “section 19(3) is only applicable before an initial statutory needs assessment has been conducted” and that what was needed was a review under section 27 and, “until that review has been completed, the obligation on the defendant is to meet the claimants’ needs as already assessed”.

The local authority suggested that  since the claimants had, throughout, nailed their colours to the mast of section 19(3), the claim must fail for identifying the wrong power. It argued that was the case, even if it was acting unreasonably in failing to provide urgent interim care provision.

Mr Justice Fordham disagreed, saying: “The fact that there is an existing care and support plan, to which the section 27 function of review and revision is applicable, does not exclude any application of section 19(3)… Urgent needs, pending assessment, would be met not by urgent revision of the plans but by urgent meeting of needs by way of provision of care and support.” He added, however, that local authorities also had the power to take urgent action pursuant to section 27:  “An urgent revision to a care plan could  be made, and that could have been  done in the present case. That could, moreover, be especially important if  there is a situation where there is something temporary and urgent but where everyone agrees that there is  no question of carrying out a further section 9(1) assessment.”

He stated: “In my judgment, the expert reports put forward could not reasonably be regarded as failing to ‘stipulate’ that the additional night-time care and support was ‘required’ or ‘urgent’. The key reason given in legal services’ letter focused on the use of the language: ‘would benefit from…’. However, a full and fair reading of the reports show that they went far beyond recommending a course as being beneficial or optimal.

“Nothing in the documents provides reasonable support for any conclusion that the mother could reasonably be expected to reposition the sons at night, single-handedly. “Indeed, I have been able to find no evidence that the defendant – and certainly anyone with decision-making responsibility – asked itself that question and, if they did, as to how they answered that question. It follows that I do not accept [the council’s] submission that there was no unlawfulness as at the date when proceedings were commenced.”

Redbridge also argued that night-time care was not urgent because documents showed that the mother continued to reposition her sons herself at night-time, even with two carers in the house. It said H had reported that she was “always present at night, and offers additional support”, and “she often sleeps next to [the second claimant], in order to offer him night-time support”.

“Before we had overnight carers, I would be solely responsible for providing any support, apart from during periods of respite. However, I still choose to assist the workers when they provide physical support,” H had said. The council argued that this supported their view that H could meet her sons’ night-time needs. However, she explained to the court (using evidence from her GP)
why she could no longer be expected to cope with the physical demands, saying: “I cannot physically do it any more.”

H never said she was unwilling but the judge was underlining that there was evidence that she could not reasonably be regarded as able, even if she was willing. The court was shown no document that addressed the question of whether the mother could reasonably be expected to reposition her sons at night singlehandedly; however, the council had concluded that she could.


Failure to consider expert evidence

In the case of JG v Southwark, a mother represented her daughter on a challenge to removing eight hours of interim night care, having obtained copious amounts of privately funded expert evidence to support the stance that it was needed.

Southwark Council’s assessor/care planner, described as undoubtedly conscientious, did a thorough job, disagreeing with the experts’ views, and hinting politely that the family were perhaps holding the client back, rather than focusing on what non-adherence to a positive support behaviour plan could be doing in terms of generating or at least habituating challenging behaviour. Southwark ultimately lost this case, however, because the assessor/care planner repeatedly omitted to address credible assertions altogether.

It is true that courts are reluctant to subject social workers’ analyses to over-zealous textual scrutiny. Here, though, the irrationality challenge succeeded because there was not merely disagreement but omission to address obviously relevant and credibly asserted considerations about the woman’s needs.

Allen J said: “He failed wholly to  take account of central evidence from behaviour experts as to the limited  scope for any improved behavioural management. He added that “describing her as being ‘far from being described as an insomniac’ goes entirely against the view of Professor S, and I do not consider that criticising a view so directly opposite to that of an expert can be described as ‘overzealous textual analysis’. It amounts in my view to a failure to factor in and give consideration to a material piece of evidence.

“The assessment under challenge does not identify any evidence upon which the assessor relied in considering that the matter could be resolved simply by the claimant being encouraged to go back to sleep rather than being brought downstairs until she settled again.” He concluded: “Limitation of additional funding for two hours a day is irrational… the claimant suffers from both urinary and faecal incontinence. She therefore requires showering not only at regular times in the morning but at unpredictable times in the day and night… that need is not answered by a provision limited to two hours a day.

“I have no doubt that Mr C carried out a conscientious evaluation of the claimant’s circumstances but there were material pieces of evidence which he did not take into account in coming to the conclusions that he did and… the assessment is as a consequence unlawful.”


Courts seeing lawlessness

Family carers should take note of the important principles emerging from these cases.

We think that local authorities’ legal teams may be overlooking the fact that the courts will have been taking note of increasing lawlessness in Care Act decision-making: witness the upturn in upheld complaints to the Local Government and Social Care Ombudsman (68% now succeeding in the adult social care field) and the number of those in which the council is simply said to have been acting outside the Care Act, or unlawfully, in light of clearly established principles of public law.

Belinda Schwehr is chief executive of legal advice charity CASCAIDr (www.CASCAIDr. org.uk) and owner of Care and Health Law, a consultancy. She has been a barrister, solicitor advocate, presenter, writer and university law lecturer


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

●  If you are unwilling to carry on with any specific aspect of care, for whatever reason, you must say so. However painful this may be, it is the answer when a council pressurises you to do more and more

● The consequence may well be that the cost of the care package at home is pushed above what a council wants to pay. However, the council can only move a person out if that is lawful in Care Act terms; that is a public law question, which is not quite the same as  the best interests one under the Mental Capacity Act 2005

● If you cannot bear to say you are unwilling, a carer can say they can no longer reasonably be regarded  as being physically or psychologically able, given the evidence available about deterioration

● If you are getting close to being unable to carry on, but still not willing to say a flat “no”, you must get independent expert evidence – it will be worth it. You are entitled to ask for the opinions from experts to be addressed
properly by the social worker doing the assessing or care planning; outsiders’ views are not determinative but must be properly considered and factored in as relevant considerations

● Detailed reasons for a council’s disagreement will not always be required but there must be an evidence basis upon which they could be seen to rely and which could objectively justify this disagreement

● Family carers have to have evidence as much as the council does – it is not always enough to say that “x always happens” or “if we did x, then y would inevitably occur”

● Unpredictable needs cannot often be met  with a set number of hours a day; generally, this means it may be necessary to  pay a family carer in the same household out of a direct payment

● Pending the conclusion of a reassessment or review, urgent needs can be provided for and sometimes must be if  there is no other way to meet them



Ali Raja and Anor, R (on the application of) v London Borough of Redbridge [2020] EWHC 1456 (Admin). https://tinyurl.com/y26fqo43 JG, R (on the application of) v London Borough of Southwark [2020] EWHC 1989 (Admin) https://tinyurl.com/yxzhytd2