OH v London Borough of Bexley (Rev 1)

A local authority assessing community care needs must act transparently and intelligibly. It must assess current needs, provide an appropriate support plan, give reasons for any reduction in support, and take all reasonable steps to reach agreement with the person concerned. A temporary care package does not justify later withdrawal without a fresh assessment. Statutory guidance under section 7 of the Local Authority Social Services Act 1970 must be followed unless there is good reason to depart from it.

O, a young adult with learning and communication difficulties, challenged the London Borough of Bexley’s reduction of his community care provision after an interim package of 24 hours per week ended. The authority contended that the package was temporary and that O reverted to an agreed package of four days of day care. O argued that no lawful review, revised support plan, reasons, or agreement supported the change.

The court considered the authority’s duties under section 47 of the National Health Service and Community Care Act 1990, the Community Care Assessment Directions 2004, section 7 of the Local Authority Social Services Act 1970, and relevant policy guidance.

1. Judicial review granted. The court quashed the Defendant’s decision to reduce O’s care provision below 24 hours per week and ordered the Defendant to reassess his community care needs. It declined to order continuation of 24 hours per week because determining the appropriate regime was for the local authority after lawful assessment.
2. Under section 47 of the National Health Service and Community Care Act 1990, the authority had to assess O’s needs and decide, having regard to that assessment, whether they called for community care services. There was no assessment after September 2014 and no appropriate support plan dealing with O’s needs after the interim package ended.
3. The authority failed to comply with statutory guidance issued under section 7 of the Local Authority Social Services Act 1970. The guidance required assessment and support planning to be person-centred, transparent and understandable. A written support plan should record eligible needs, agreed outcomes, arrangements for meeting those outcomes, and a review date.
4. The court applied R v London Borough of Islington, Ex parte Rixon (QBD 15th March 1996). Statutory guidance is not equivalent to a direction, but an authority must follow the path it sets unless it has an admissible good reason to depart from it and does not take a substantially different course.
5. Ground 2 also succeeded. Even assuming that a baseline package had existed, the authority gave no explanation for ending the 24-hour provision when the reablement assessment had not occurred and O had not started college. Ground 3 had substance because of the lack of transparency and consultation, but the central defect was the absence of a proper assessment after 21 September 2014.

The judgment describes a first-instance judicial review claim commenced on 22 December 2014. Permission to apply was granted by Mr Nicholas Lavender QC on 22 January 2015. The High Court (Administrative Court) granted judicial review.