Clarke, R (on the application of) v London Borough of Sutton

A local authority’s community-care assessment must engage with the claimant’s actual medical and support needs and give appropriate weight to relevant expert evidence. Judicial review remains subject to a heavy threshold, but an assessment may be unlawful for procedural irregularity or unreasonableness verging on absurdity. The authority must also involve the person seeking support in accordance with the applicable guidance. Where an authority proposes to withdraw an established care package and require a move, it must have adequate evidence that suitable alternative care is available. A decision based on an inadequate assessment may unlawfully interfere with the person’s rights to respect for home and private life.

The claimant, who had severe epilepsy and associated mental-health and behavioural difficulties, challenged the London Borough of Sutton’s decision to replace an established specialist supported-living package with a substantially cheaper non-specialist arrangement. The authority assessed his needs without consulting him before producing the updated support plan and without obtaining direct evidence from the proposed care provider about its ability to provide suitably trained staff and rescue medication.

The issues were whether the assessment and resulting care decisions were unlawful, and whether requiring the claimant to leave his established home engaged and unlawfully interfered with his rights under article 8.

1. Claim allowed. The decisions to terminate the claimant’s existing care package and to determine his assessed needs and services were quashed. The authority was required to reassess his needs and the care consequently required.
2. The claimant faced a heavy burden on judicial review. The relevant threshold was procedural irregularity or unreasonableness verging on absurdity, as identified in R (Ireneschild) v London Borough of Lambeth [2007] EWCA Civ 234.
3. Despite that threshold, the assessment failed to understand and address the claimant’s medical and support needs. The provision of waking care on only three nights each month was irrationally disconnected from evidence that seizures were unpredictable and required continuous monitoring. The defendant had relied excessively on a non-expert social worker in the face of substantial contrary evidence from qualified medical and care professionals.
4. The authority had not adequately explained the calculation of the proposed care package, had not consulted the claimant before preparing the updated plan, and had not produced a care plan or direct evidence from the proposed provider demonstrating that suitably trained staff could provide the required care, including rescue medication.
5. The defendant’s decision to require the claimant to leave his established home engaged article 8. On the inadequate assessment, the authority could not show that suitable alternative accommodation and care were available, and the claimant had not been sufficiently involved in the decision-making process. The interference was therefore unlawful.