Community Care Case Reports - Elderly Client Adviser

Feature

posted 1 Jul 1998 in Volume 3 Issue 5

Community Care Case Reports

Since the landmark cases of Sefton and Gloucestershire, there have been a number of cases that have gone through the Courts, which do have an impact on the provision of community care services for clients. Anne Edis reports on the principle cases.

R v North Yorkshire County Council ex parte Hargreaves (Times Law Report Nov. 1994 - Hargreaves 1)

R v North Yorkshire County Council ex parte Hargreaves 1997 (The Times 12th June 1997 - Hargreaves 2)

Both these cases involved local authority provision. The first case of respite care, and the second in connection with the provision of holidays. It is understood that Hargreaves 3 is in "the system" at the moment.

Hargreaves 1 was the review of a local authority decision on the provision of respite care that did not accord with the choice of the service user who suffered from physical and mental handicaps. In this case it was held that the local authority had assumed that the preference of the client was the same as the applicant, which the council is not entitled to assume. There may be cases where it is not possible to ascertain the carer and service user's preferences. This was not the case here where the handicapped sister could express her view.

It was further held that there had been a breach of policy guidance, but the case was distinguished from that of Avon County Council ex parte M which permitted refusal to accept in full the recommendations of a complaints review panel relating to transitional holiday arrangements, because transitional arrangements collateral to the part of the complaint upheld and, interestingly, they held that because there was a minor diversion, there was no duty to give reasons for the departure.

In Hargreaves 2, Yorkshire was only prepared to pay holiday costs of the carer not service user's under section 2 of the Chronically Sick and Disabled Persons Act 1970 (CSDPA). It argued that the word 'facilitate' did not envisage direct provision and it was also argued that a holiday itself is an ordinary cost that everyone, not only the disabled, have to incur and that the authority was not obliged to relieve poverty, but only meet the additional costs incurred by the disability. It would meet additional costs such as special transport, but not basic costs of the hotel. The authority was found to be wrong on these points and was held to have fettered its discretion in misunderstanding section 2 of the CSDPA 1970. However, the Court indicated a reassessment may be available to the authority and a different conclusion being reached relying on the Gloucestershire principle. In principle, authorities must:

a. take account of service user and carer's costs

b. have an open mind to facilitate both council sponsored and client-arranged holiday.

The policy should be: (a) never say never, i.e. don't fetter discretion in holiday cases; (b) consider total cost, not just the additional cost; (c) be alive to the fact that section 2 also requires consideration of the relief of poverty; (d) consider ability to reassess in Gloucestershire terms; and (e) follow policy guidance made under section 7 of the Local Authorities Social Services Act 1970 which is mandatory (see the case of ex parte Rixon post).

R v Somerset County Council ex parte Harkham heard 7th May 1997 reported in The Times.

This case was concerned with the following issues:

1. Charging rules for residential care.

2. The power to disregard the value of home of someone in residential care.

Facts:

Son returned from Australia to look after his mother with Parkinson's Disease who was in the care of the local authority under section 21 of the National Assistance Act 1948. On his return, she left the section 21 residential accommodation and returned home. She had a stroke and returned to section 21 care. Under the Charging for Residential Accommodation guidelines, there was discretion to disregard the value of the mother's house. The local authority did not disregard the value of the home and although it did not force the sale, it put a monthly charge on the house. Mother died and the local authority raised a section 21 bill of £25,000 plus interest as from the date of death.

Held:

1. Not reasonable to disregard the value of the home.

2. Factors although not decisive, son's return to Australia after the stroke was persuasive.

3. The effect of the return to Australia was that the need for the house was not to care for mother but because the son gave up his career in Australia.

It was held a reasonable decision based on proper consideration of facts and circumstances of the case.

R v Avon County Council ex parte Hooper and another 1997 1 All England Law Reports 532 Court of Appeal

This case allowed the local authority on the facts to charge retrospectively under section 17 of HASSASSA for services provided under section 29 of the National Assistance Act 1948 and Schedule 8 of the National Health Service Act 1977 following a substantial award being made to the family after a successful negligence suit against the health authority. The charge was levied when the child died soon after the £289,000 award was made.

It was held:

1. In the circumstance it was a reasonable charge to make.

2. It was reasonable to charge after rather than at the time the service was delivered; retrospective charging is usual in community care provision anyway.

3. It was a charge the payer could reasonably afford to pay.

4. The means includes all resources, not just the cash of the payer.

NB: It was the health authority and not the parents of the child that ultimately paid in this case.

R v Haringey Council ex parte Norton 1997

This is a case report by the Crown Office at 555/97 which is relevant to section 2 of the Chronically Sick and Disabled Persons Act 1970 and was a High Court decision which held that local authorities should not confine people's needs to personal care needs but should include their recreation and leisure needs also.

R v Powys County Council ex parte Hambridge 7th October 1997, Crown Office 28 97.

In this case, which is being pursued further through the higher courts, it was argued that section 2 of the Chronically Disabled Persons Act 1970 services list were not incorporated into section 17 of HASSASSA. There was not a power for such services to be charged for. It was held that section 2 services are provided when exercising functions under section 29 of the National Assistance Act 1948. Section 29 is in the section 17 HASSASSA list, therefore there is a power to charge.

R v London Borough of Islington ex parte Rixon 1997 1 Education Law Reports (HC)

Facts:

Jonathan Rixon was a 25 year old man who suffered from Seckles Syndrome, was blind, microcephallic, immobile, doubly incontinent and largely unable to communicate. He suffered serious physical disability and his weight, size and dependency were that of a baby.

The issues were:

1. A failure to meet his recreational needs under section 2 CSDPA i.e. individual duty owed to an applicant personally;

2. Resources were a balancing and not a blocking factor and Islington had not considered a balancing exercise under section 2 thoroughly enough;

3. Care plans and guidance - Sedley J found the care plan failed to comply with either community care the next decade and beyond, the policy guidance or practice guidance.

Held:

It was held in this case that policy guidance made under section 7 of the Local Authorities Social Services Act 1970 was statutory guidance and therefore mandatory. Sedley J went on to say that the practice guidance, although not the same as policy guidance, needed to be followed fairly closely. He concluded occasional diversion from practice guidance may not be challengeable, but a disregard or failure to incorporate the main principles of the practice guidance may be challengeable.

The case is significant for its clear guidance on the role of section 7 guidance.

R v Bristol City Council ex parte Alice Penfold 23rd January 1998 Crown Office 1037/97. Decision of Mr Justice Scott-Baker in the Queen's Bench Division

Facts:

Mrs Penfold was anxious and depressed; she was dependent on her family for care and support and she sought a judicial review of Bristol's failure to conduct a section 47 assessment.

She was unintentionally homeless in priority need and did not exclude any area as inappropriate for rehousing. She was offered a flat in central Bristol, which she refused and her appeal was dismissed. Bristol considered its duty to her under the Housing Act was discharged. She was offered a further tenancy, refused, and appealed again. She was living in temporary accommodation when solicitors instructed by her requested a section 47 assessment under the NHSCCA 1990 and an assessment of her daughter under the Children Act 1989 and a carer's assessment was also requested, and a link with section 21 of the National Assistance Act 1948 as a provider of accommodation or care and attention was also asserted.

Bristol carried out a pre-assessment as to whether community care assessment was necessary and on what they already knew of Mrs Penfold they concluded no such assessment was needed. Therefore, Bristol concluded that she did not have community care needs. An assessment was held to be unnecessary. Mrs Penfold contended that the authority could not fail to conclude by the March of 1997 that she appeared to be in need of community care services.

The applicant's needs were:
1. Housing with family support nearby. The issue for the Court was whether Bristol acted unlawfully in not assessing under section 47;

2. Whether there was power to provide housing under section 21 of the NAA 1948;

3. There was some confusion as to whether an assessment under section 47 had been conducted at all because of Bristol's knowledge of Mrs Penfold and the services they could provide, whether there had been an assessment but no need identified for which Social Services could have provided residential accommodation.

The Court held that:

1. No assessment had taken place.

2. The threshold for appearing to be in need of community care service was a very low one.

3. The practice of sifting out assessment where there is no hope of meeting any need is unlawful.

4. There is a benefit in assessing when there is no hope of provision as it allows a clearer method of identifying and recording unmet need.

5. The Court did not accept that a section 47 assessment allowed Mrs Penfold to queue-jump the housing list.

6. Bristol was not entitled to consider its resources. If it had left them out of account an assessment would have been conducted under section 47.

7. As a consequence of not conducting a section 47 assessment, a carer's assessment was not conducted in respect of Mrs Penfold's daughter Karen.

8. The flawed assessment was therefore also in breach of guidance.

9. The Court decided no assessment had been conducted at all, or, if an assessment did take place, it was in breach of policy guidance.

10. Following a community care assessment, the local authority has power to provide accommodation under section 21 of the National Assistance Act 1948. Normal housing, therefore, can be provided when it would otherwise have to be met by other community care services.

The case concludes with the fact that, although the application succeeds and an assessment must be conducted, there are many features in the case that suggests the merits of the claim fall short of the way it is put in Mrs Penfold's own commissioned report and there are many people with similar needs.

It is thought that this case could lead to unnecessary expense of assessments of unmeritorious cases. In the long run, genuine cases may be delayed.

Postscript:

Readers' attention will be drawn to the case of East Sussex County Council v Tandy in a further update. Although this is an education case, it may have implications for community care practitioners in that it is at odds with the decision in Gloucester where resources were held able to be taken into account. In Tandy, the contrary is held.

Anne Edis