The Court of Appeal’s decision in the Davey case: what it means for DDPOs and Disabled people

Luke’s appeal was dismissed. This is a devastating outcome for him as he won’t only be stuck at home with minimal support he also risks losing his support team, who were with him for 18 years.  The outcome is also disappointing and worrying for other Disabled people, as this case sends a message to local authorities that they can implement whatever cuts they want as long as they follow the right process.

On the 1^st September the Court of Appeal handed down its judgement in the case of Davey v Oxfordshire County Council.  In this case Luke Davey, who is a former Independent living fund recipient, challenged a 40% cut to his personal budget after the closure of the ILF.

Luke’s appeal was dismissed.  This is a devastating outcome for him as he won’t only be stuck at home with minimal support he also risks losing his support team, who were with him for 18 years.  The outcome is also disappointing and worrying for other Disabled people, as this case sends a message to local authorities that they can implement whatever cuts they want as long as they follow the right process.

To us the case also clearly demonstrated the limits of judicial review in cases where disabled people are trying to argue against professional opinions of social workers.  Judicial review does not look at whether local authority made the right decision or the best decision; it looks at whether or not the decision was lawful.

The decision

The Court of Appeal confirmed that the decision to cut Luke’s personal budget was reached as a result of a lawful process.  Largely the judges agreed with legal analyses and the findings of Mr Justice Morris, who made initial decision in the High Court. Here are some of the most important points:

• The duty to promote wellbeing in section 1 has 2 aspects: firstly it requires local authorities to take positive steps to promote wellbeing, and secondly it requires local authorities to pay regard to circumstances listed in section 1.3 of the Care Act 2014.
• The assessment under the Care Act 2014 is an objective assessment, done by social workers of OT’s for local authorities
• The wishes of the disabled person may be a primary influence, but they do not amount to an overriding consideration.
• The UN Convention on the rights of Persons with Disabilities can be used to help interpret the law (with caution), however in this case no particular ambiguity was identified and the balance between person’s wishes and LAs views has been struck in the Care Act itself.  However, the Court of Appeal acknowledged that this should not prevent from this point being raised in future proceedings.
• The judge confirmed that the council was entitled to set a pay of PAs at a lower rate as long as it reflected local market conditions and  that the law did not require it to pay for a more expensive option, which was preferred by an individual. The judges were prepared to accept social worker’s view that the rates reflected local market conditions.  This however potentially puts into questions provisions in the Care and Support Guidance which say that local authorities should choose not the cheapest option, but the one that is best value for money.  The guidance clearly says they should go for an option that better promotes wellbeing and delivers the outcomes for an individual.

Our intervention

Inclusion London intervened in this case.  We wanted to show that the case was not just about Luke’s care package.  It could have an impact on many Disabled people.  Our intervention helped to draw media attention to this case and enable us to talk about our right to independent living in mainstream media.  We also believe our intervention helped to clarify the point that local authorities have to consider what might happen in the future when there is an imminent risk of negative consequences as a result of their decisions.

Besides the fact that Luke lost and the impact this will have on his life, the biggest concern in this judgement from our point of view is the statement about intensity of judicial review in social care proceedings.  The Court of Appeal effectively warned against overzealous analyses of social care assessments.  This is worrying, because life changing decisions are made based on those assessments, and unfortunately there is no other way to properly scrutinise them.  This is why we will continue to lobby for the appeals system, which was meant to be introduced by the Care Act 2014.

The fact that local authorities at the end of the day make final decisions about our needs and how we will be supported is not new.  The law has always said this.  However many of us felt disappointed when we saw the judgement.  This firstly is because the case clearly shows that in the age of austerity, when local authorities have to find significant savings, the provisions of the Care Act about choice and control do not have teeth.  It also is disappointing for us to see how our views can so easily be overridden by professional opinions of social workers and local authorities not being properly scrutinised for some of the decisions they make.

This was the first case brought under the wellbeing duty and it clearly demonstrated the limits of this duty.  It is worth bearing in mind though that the case was mainly lost because of factual evidence.

Lessons for DDPOs

This case clearly shows that local authorities can get away with implementing even very significant cuts if they follow the process set out in the Care Act and can give a logical explanation to their decisions as well as commiting to reviewing the situation and stepping in if things go terribly wrong.

It does not mean however the cuts cannot be challenged; we can and should do this.  Here are some of the basic things you could do to increase a chance of success in your case:

• Know the process well and challenge when it has not been followed;
• Ask for explanations early on, ideally with references to the law. Although local authority can submit further explanatory evidence it will be difficult to do so if it contradicts what they said before.  For example if they are suggesting a cut to your support package, ask them to explain how this will promote your wellbeing;
• Think of evidence.  If we want to challenge cuts, the onus is on us to prove the impact.  Just a statement from a disabled person will not always be enough. The judges will most likely accept social workers view, unless it is irrational;
• Pay attention to the assessment process, prepare and clearly explain what you mean.  Make sure to ask for a correction of all factual mistakes in the assessment document;
• Challenge decisions: yes this case was not successful, but it cannot and should not deter others from challenging cuts to their support.

We lost this battle, but we will keep fighting.