9.77R v Sutton LBC ex p Tucker (1997–8) 1 CCLR 251, QBD
Assessment and care planning must comply in substance with the statutory guidance and include effective long-term planning
Facts: the applicant’s daughter, who was severely disabled and experienced substantial communication difficulties, had remained in hospital for two years after she was ready to be discharged because of Sutton’s failure to complete an assessment and care plan that addressed its long-term obligations so as to enable her discharge.
Judgment: Hidden J accepted the applicant’s submission that Sutton had acted unlawfully by failing to ‘act under’ statutory guidance. He also held that the complaints procedure would not have been an adequate alternative remedy, so as to trigger the court’s discretion to refuse judicial review relief. On the care plan, he said this:
Mr Gordon submits that this is not a care plan, or if it can be regarded as a care plan, it is woefully inadequate and suffers from the same faults as were pinpointed by Sedley J in the case of Rixon at pages 19, 20 and 24 [(1997–8) 1 CCLR 119 at pp129–131]. Mr Gordon says there is no stated overall objective in terms of long term obligations or carers’ obligations or those of the service providers. Since no objectives are recorded there is equally no criteria for the measurement of the objectives. There are no costings and no long term options as to residential care options considered. There are no recorded points of difference between the parties and there is no reference to unmet needs or the reasons therefore. There is no reference to the next date of review. Mr Gordon submits that the care plan is as far from the guidance given in the policy guidance as was the care plan in the Rixon case. What, he submits, it should have done was to demonstrate the efforts made by the Local Authority and show a realistic time scale for discharge of their obligations. It should have recorded the long term needs and Mrs Tucker’s needs, but in fact it marks a concerted, contradictory and unyielding stance by the Local Authority to finding any long term placement.
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Mr Gordon submitted that Sutton had acted unlawfully in having no lawful care plan which would show exactly the points of disagreement between Mrs Tucker and Sutton which would identify unmet need and would set out clearly the objectives for Therese and the criteria for meeting such objectives. Had there been such a care plan the efforts or lack of efforts of the Local Authority would have been transparent. Again I find Mr Gordon is right in his criticisms of the document which is put forward as a care plan in that, as he correctly submits, there are no stated overall objectives in terms of long term obligations, carers’ obligations or service providers, there is no criteria for the measurement of objectives because the objectives themselves are not recorded in any care plan. There are no costings, no long term options, no residential care options considered,there are no recorded points of difference, there is no reference to unmet need and there is no reference to a next date of review. I am satisfied that the criticisms that Mr Gordon makes of the care plan are valid ones.
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I accept the criticisms made by Mr Gordon of what is said to be the care plan in this case, those criticisms I have just referred to. I accept Mr Gordon’s submissions that the care plan sought to be put forward in this case is as far from the policy guidelines as was that in the Rixon case. I find the respondent has acted unlawfully and departed without good reason from the policy guidance issued by the Secretary of State. I find that the respondent has used its undoubted discretion to make short term and interim decisions in relation to the care of the applicant. The use of such discretion cannot in my view replace the duty to make a service provision decision as to the long term future of the applicant. I therefore find the respondent has acted unlawfully in the matters and in the manner I have indicated. I would also be prepared to find that such actions were Wednesbury unreasonable if that were necessary. As to the relief to be granted by the court I shall listen to any submissions from counsel.