R (Davey) v Oxfordshire CC in the Court of Appeal

September 7th, 2017

Last Friday the Court of Appeal delivered judgment in R (Davey) v Oxfordshire CC [2017] EWCA Civ 1308. This is the first time the Court of Appeal has examined the provisions of the Care Act 2014. We were cautious about blogging about the High Court judgment ([2017] EWHC 354 (Admin)) whilst it was on appeal, as members of our chambers were in the case. Now that the appeal has been decided, we can speak more freely.

The main points of law covered are the following –

 

On the duty to assess, both the High Court (at para 21) and the Court of Appeal (at para 52) made the following points:

  • The assessment under section 9(1) is an objective assessment.
  • The duty under section 9(4) is not to achieve the outcomes which the individual wishes to achieve, but to assess whether the provision of care and support would contribute to those outcomes.
  • If the local authority does not assess the matters specified in section 9(4), including the impact on well-being matters set out in section 1(2), then there is a breach of the statutory duty.

 

There was a great deal of written argument in both courts on the impact of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), particularly Article 19, which deals with independent living: see the High Court at paras 34-49, and the Court of Appeal at paras 60-64. The Equality and Human Rights Commission intervened in both courts to make submissions on this issue. The Court of Appeal endorsed the following the points made by the High Court –

  • The UNCRPD, as an unincorporated treaty, creates no direct obligations in domestic UK law.
  • A UK statute should be interpreted in a way that is consistent with the UK’s obligations under that Convention. Words of UK statutes passed after the entry into the Convention should be construed, if reasonably capable of bearing such a meaning, as intended to carry out the treaty obligation and not be inconsistent with it.
  • The UNCRPD can be resorted to in resolving any ambiguity over provisions of the Care Act 2014. However great care must be taken in deploying provisions of the UNCRPD as it sets out broad and basic principles which are aspirational in nature.
  • The UNCRPD does not change social care decision-making by weighting the balance more in favour of the service user / budget recipient, nor give them the final say as to provision or their personal budget. The wishes of the individual may be “a primary influence, but they do not amount to an overriding consideration”.

 

While the Court of Appeal rejected the EHRC’s submissions as to the impact the UNCRPD has on the Care Act, Bean LJ stated that “this should not prevent the argument being advanced in a future case”. So we will have to wait and see what more is made of the UNCRPD in the future.

 

There was significant discussion in the Court of Appeal as to whether local authorities were required to assess or meet “future needs” (though less discussion as to what this term actually means). A second intervener, Inclusion London, intervened to make submissions on this point. The Court of Appeal at paras 72-73 cited with approval the statement of Lord Neuberger in R (M) v Slough BC [2008] 1 WLR 1808 at paras 54-55 that the needs to be met were present needs, not future needs.

 

The appellant in the Court of Appeal sought to convince the court that the principles in R v Westminster CC, ex p Ermakov [1996] 2 All ER 302, and other cases, concerning when ex post facto evidence is impermissible, should be applied in judicial review challenges to adult social care assessments and provision decisions. The Court of Appeal at para 77 rejected this argument. Bean LJ held at para 77:

 

I would caution against applying the standards required of (for example) a decision on a planning application to the entries made by local authority social workers in assessments or care and support plans”.

 

Bean LJ went further and specifically endorsed the observations of Hallett LJ in R (Ireneschild) v Lambeth LBC [2007] EWCA Civ 234 at para that –

 

“… one must always bear in mind the context of an assessment of this kind. It is an assessment prepared by a social worker for his or her employers. It is not a final determination of a legal dispute by a lawyer which may be subjected to over zealous textual analysis. Courts must be wary, in my view, of expecting so much of hard pressed social workers that we risk taking them away, unnecessarily, from their front line duties.”

 

This may prove important to local authorities when preparing their defence to social care judicial review challenges, as social care assessments and provision decisions so often require further explanation. While Ireneschild is an important statement in this field, it pre-dates the Care Act 2014, and has never been considered alongside Lord Wilson’s statement in R (KM) v Cambridgeshire CC (concerning the heightened importance of social care decisions). That has now been done, and the Ireneschild approach has been expressly approved by the Court of Appeal albeit its analysis is arguably obiter in light of the fact that this ground was academic in light of the judge’s findings of fact.

 

In the Davey case the appellant ran an argument, following its argument in the High Court, that as existing personal assistants (Pas) stated that their rates of pay were insufficient, the budget needed to be raised to enable Mr Davey to pay his carers at a higher rate. Both the High Court and the Court of Appeal rejected this argument. Bean LJ at para 81 held that, while the PA concerned could not be criticised for being dissatisfied for regarding payment at minimum wage as a poor reward for her quality and experience, the Statutory Guidance at para 11.25 makes clear that the personal budget should reflect local market conditions. The Council had submitted evidence as to local market conditions and rates of pay, and the court was entitled to accept that evidence. It was not unlawful for the Council to decline to raise the budget to guard against the risk of PAs leaving because they were not prepared to work for the going rate.

 

In Davey there were a number of further interesting points that were dealt with by Morris J in the High Court, but which did not arise on appeal (the Court of Appeal’s judgment did not cast any doubt of those parts of Morris J’s judgment.) These include –

  • para 121 (of Morris J’s judgment): the difference between “needs” and “wishes”, and the LA’s obligations in light of this distinction;
  • para 122: whether the LA could regard “developing independence” (or as the claimant had put it, “spending more time alone”) as a “need”, when it was said that Mr Davey himself did not want this,
  • para 127ff: the LA’s approach of responding to concerns as to spending more time alone by making budget arrangements which involved Mr Davey spending more time alone,
  • paras 136, 153-154, 167-173: the correct approach to section 1 well-being “have regard” factors,
  • paras 56, 60: general principles relating to judicial review challenges to adult social care decisions, and
  • paras 158-162: the section 27 duty to take steps to reach agreement.

 

Overall there are many useful points across the two judgments to assist our understanding of the Care Act 2014. While this article has concentrated on the points discussed in the Court of Appeal, the further issues also decided in the High Court are also of importance.

 

It is not yet known whether Mr Davey will seek permission to appeal to the Supreme Court.

 

Andrew Sharland

 

Jonathan Auburn and Zoe Gannon appeared for the local authority in both the High Court and Court of Appeal

 

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