Case note

Judicial Review proceedings (withdrawn as settled before final hearing) relating to the failure to assess and then meet the needs of a young person with additional needs and to take full account of her parent carers’ willingness and ability to meet needs.

 

R (CWR) v Flintshire County Council (2018)

This case highlights the importance of comprehensive assessments of people in need of care and support and their carers, and how this is reflected in their Care and Support Plans – as required by the Social Services and Well-being (Wales) Act 2014, its Regulations and Codes. Although the case was settled before a full hearing the case report nevertheless provides a valuable insight into how the legislation is intended be applied to secure the care and support needs of disabled people and their carers.

 

Summary

C is a young adult of average intelligence with a diagnosis of autism spectrum disorder.  She had a care package amounting to 8 hours of Direct Payments (DPs). Shortly before she finished in her part time educational placement her parents sought additional assistance with providing her care. Flintshire County Council (hereafter the LA) failed to respond to their requests for assistance. Her parents sought legal advice on her behalf. Legal aid was available. An assessment under the Social Services and Wellbeing Act 2014 was eventually obtained. This demonstrated a need for 24 hour support and care.  A carer’s assessment was carried out on the mother. This demonstrated that she was no longer willing or able to provide the bulk of the care. No carer’s assessment was done on the father.   Services amounting to just an additional 8 hours of directly commissioned support plus the 8 hours of DPs were offered.  Proceedings were instituted for judicial review. One week before final hearing the LA agreed to provide a package of care amounting to 60 hours per week (240 hours per 4 week period) including provision for a full 48 hours of respite care per 4 week period.  The LA also agreed to provide a formal apology and to make an award of damages for breach of C and her family’s human rights.

Conclusion

In many ways it is a pity that this case did not come before the High Court because it raised a number of significant issues on which it would have been helpful to have judicial guidance including:

  • The crucial issue of the extent to which a local authority must have regard for an informal carer’s willingness or ability to provide care;
  • Who is or is not a carer;
  • The relationship between assessments and support delivered under the Welsh Mental Health Measure and those delivered under the SSWWA;
  • The time needed for the local authority to assess and come to provision decisions;
  • The nature of the duty on a local authority to reach an eligibility decision and to meet all eligible needs;
  • The nature of the duty on a local authority to draw up and maintain care and support plans;
  • The nature of the duty on a local authority to have regard to the various factors set out in Part 2 of the SSWWA and in the Codes of Practice;
  • Whether failures to meet statutory duties in good time or at all may give rise to damages under the Human Rights Act 1998.

However, it is clear from the action of the LA in this case, albeit very late and against the context of an imminent High Court hearing, that this authority at least recognised that it had failed adequately to meet its statutory duties to C and her family.

A more detailed case report can be found at Rhydian: Wales Social Welfare Law on-line (2018) 19-22.

Solicitor: Julie Burton, Julie Burton Law Bangor – www.julieburtonlaw.co.uk

Counsel: Joanne Clement, 11KBW