10.13R v Birmingham CC ex p Killigrew (2000) 3 CCLR 109, QBD
The reduction in care was not justified by a sufficiently adequate assessment
Facts: Birmingham had provided Ms Killigrew with 12 hours care each day, in the light of her severe disability. It then moved Ms Killigrew to better adapted accommodation and reduced her hours of care to three and a half hours during weekdays, with some additional care over the weekend. The decision was unreasoned. After the issue of a judicial review, Birmingham undertook an assessment, which concluded that the hours should be increased to six hours each day, and which gave as its reason that, under the existing arrangements, little direct care was provided for most of the day.
Judgment: Hooper J held that it was notable that the reduction in the hours of care coincided with a decision that two carers rather than 1 needed to be provided, to comply with manual handling requirements and it was important that the reduction in hours was not driven by the economic consequences of that decision. In any event, Birmingham’s assessment was unlawful for two reasons: (1) it contained no proper analysis of why 12 hours care had been provided, why that was no longer necessary and what would be done if an emergency arose, (2) in breach of the statutory guidance, Birmingham had failed to take into account up-to-date medical evidence and the views of the GP and the claimant’s carers:
25. Although the New Plan was then being put forward as a basis for discussion, it was adopted by the respondent.
26. What was needed was a very careful assessment of why, if that was the case, 12 hours care was no longer needed. The importance of the respondent satisfying itself that this was the case is obvious. The applicant and her husband were asking for at least the 12 hours care to continue. Her condition was inevitably and steadily deteriorating. Not continuing the 12 hours care could, it was being said, have serious consequences for the applicant, and was certainly likely to cause deep distress to the applicant (see page 17). The decision to reduce was made at a time when it had been decided that two carers were needed for lifting. It was important that the reduction to six hours care was not driven by the need to have two carers to carry out the task. On the evidence available before me, the reduction could only be justified if there was no continuing need for 12 hours care and not simply because two carers were needed when only one had sufficed earlier.
27. Do we find that careful assessment in the October Care Plan, in particular in pages 110 and 111, which I have already read? Making all allowances for the fact that this is not a legal document and should not be construed as such, I have no doubt that we do not. There is no proper analysis of why the 12-hour Care Plan had been originally adopted. What were the perceived advantages of that plan at the time of its implementation? Why are those perceived advantages no longer seen as advantages, if such be the case? The author of the plan, Meg Allot, refers to ‘the flexibility which has been requested to allow for unpredictable care needs’ (emphasis added). The use of the word “requested” shows that the author is not concentrating on the plan in place. Her argument for dismissing this flexibility is also of note. She writes that this flexibility ‘has in fact led carers to undertake tasks which they were not contracted to do, and are outside the responsibility of social services department’. If, to quote the earlier plan, the 12 hours care was chosen to help with the tasks of ‘supervision’ and ‘of appropriate stimulation’, it is likely that in the event (for example) of no emergency, other things will be done. What is important is not to assess what happens if there is no emergency, but what will happen if there is an emergency and no one is supervising her.