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Davey V Oxfordshire County Council- The Hearing

August 17, 2017

Same Difference was invited by Inclusion London, who are supporting Luke Davey in his case against Oxfordshire County Council, to cover part of today’s tribunal hearing in the case, at the Royal Courts of Justice.

Luke Davey, 40, has quadriplegic Cerebral Palsy. He is currently fighting to get back the care package he has had throughout his adult life, which has been cut almost in half after the closure of the Independent Living Fund. The care package he is used to allowed him to live independently with the support of Personal Assistants/carers who he has known and liked for 20 years.

We heard the arguments presented by Luke Davey’s solicitor in support of his case.

Mr Davey, the Court was told, tried to accommodate the cuts to his care package but these have negatively affected his wellbeing. The Court was asked to consider the consequences, for Me Davey, of cutting his care package.

The cut meant that Mr Davey only had care for 18 hours a day, rather than 24. This was because he was found not to need ‘waking night’ care.

For Mr Davey, the cut meant that he had to pay less to his carers than he had been paying, and they had been used to being paid. Mr Davey’s team of carers threatened to leave their jobs until his mother topped up their pay, which allowed him to afford 20 hours of care daily rather than 18.

The cut affected Mr Davey’s personal care, particularly his toileting needs. It also affected his social life as he needs support in the community.

Mr Davey’s is the first case under the Care Act to reach the Court of Appeal. The Act was heavily referenced and mentioned in the arguments. The important point was made that under the Care Act, two things must be considered when providing care, for the well being of the adult receiving care. These are the location of the care- the community or a residential care setting- and the identity of the care team.

The Care Act requires social workers to consider the future well being of an adult receiving care under care plans. When the case was heard at the High Court at the end of 2016, the Judge, Mr Justice Morris, highlighted the Care Act as a major Act in this area. He recognised that it is formal and prescriptive about care plans.

The solicitor argued, however, that the Judge didn’t highlight the importance of involving the adult who needs care in their care planning. The core purpose of care plans, the Court heard, is to allow the adult needing care to achieve outcomes relevant to them.

The importance of considering how, where and by who care is provided was highlighted for the Court. The solicitor made the point that the individual needing care is best placed to judge these. The importance, for the individual, of enjoying social care was also highlighted.

Local authorities, the Court heard, must decide if an individual has social care needs and what these are. A needs assessment must include ways to try to achieve outcomes important to the individual but there is no duty to achieve these outcomes.

Needs are defined as the inability to achieve an outcome because of physical or mental impairments. An individual has a need if achieving an outcome would take them too long because of an impairment, or if an impairment would leave the individual unable to achieve the outcome without harming themselves or someone else.

Local authorities cannot ignore needs that are already being met by volunteers when carrying out assessments. When a local authority is satisfied there are needs they must determine whether these meet eligibility criteria to be met by the local authority.

Mr Davey’s Local Authority says he does not have needs, but he does.

The Care Act recognises the difference between identifying and meeting needs.

The Care Act also tries to reflect the individuality behind the phrase ‘significant impact on well being.’ What is significant to one person may not be to another.

Under the Care Act, the Local Authority must prepare a Care and Support Plan, tell the adult which if any needs are going to be met and help the adult decide how needs are going to be met. The Local Authority must take reasonable steps to involve the adult in the way  needs are going to be met.

The Care and Support Plan must include the personal budget for the adult concerned including how much the adult is required to contribute.

The Local Authority should refrain from any action that would restrict choice or affect flexibility.

Mr Davey’s case is about ensuring that he can keep his current care team, because that is the outcome he wants.

The individual must know the amount they will receive as a Personal Budget and be confident that this amount will meet all their needs. Using Direct Payments is not a reason to be less clear about how Personal Budgets will meet needs.

The Court was presented with an assessment carried out on Mr Davey in January 2015 which found that the most important thing in his life was that the same team of carers should continue to care for him. This assessment found that Mr Davey is reliant on his family and his team of carers for emotional support. It also found that continuing with the same carers would benefit his mental health and emotional well being.

The decision to reduce Mr Davey’s care package by 42% was made by a panel in February 2015.

Mr Davey has told his Local Authority that he doesn’t want live in care, even if it is provided by his mother, because he doesn’t want to make his team of carers redundant.

An Occupational Therapist’s assessment found that Mr Davey had become too dependent on carers being with him all the time. The OT addressed his anxiety about being at home on his own by cutting his care. However Mr Davey was allowed to organise the hours he spent without care each day himself.

Mr Davey was used to paying his carers double time on Bank Holidays and weekends. The Local Authority made a payment which allowed him to pay double time on Bank Holidays last year.

However the Local Authority set significantly lower rates of pay than Mr Davey was paying before. Mr Davey agreed some of the changes, but not all of them. In particular he did not agree to stop paying double time at weekends.

Mr Davey’s relationship with his team of carers was very significant to him and keeping it was the most important outcome to him. He was very worried that the lower rates of pay would break up the team.

However, the Court heard that, at the High Court, the Local Authority said the breakup of his team would be positive because it would allow Mr Davey to reduce dependence on specific carers, and therefore that it would be the best outcome. They also said that the breakup of the team would not pose any risk to Mr Davey’s well being.

At the High Court, the Local Authority said there was insufficient evidence that Mr Davey’s current team of carers would break up as a result of the cut, when, Mr Davey’s solicitor told the Court today, there was a lot of evidence for this.

Mr Davey’s solicitor said that waiting until the current care team broke up and Mr Davey was experiencing the consequences goes against the need for planning under the Care Act.

Mr Davey consistently says that he is happy with his team, and he finds the Local Authority’s suggestion that this is wrong difficult.

At the High Court, the Local Authority said Mr Davey had become less independent as an individual and blamed the care team for this. They said this because Mr Davey has finished college and stopped voluntary work.

At the High Court, the Local Authority gave evidence that other disabled people in Oxfordshire were easily able to recruit new carers, but Oxfordshire is large and Mr Davey lives in a remote part of it.

The Local Authority said that Mr Davey had previously recruited at minimum wage. This is true, but only for some of the time and never for weekends, as the new budget would require.

The cut has a social impact on Mr Davey because it means that he cannot choose what he does each day as his care hours are broken up. He can no longer take occasional day trips or, in fact, do anything that takes longer than three hours. The social activities he is still able to do are not enough.

Same Difference will follow this case closely and update readers on the final ruling as soon as possible.










One Comment leave one →
  1. August 18, 2017 5:42 am

    Inclusion London-
    London Councils

    London Councils – Current Inclusion London Grant £280,000

    Total London Councils Grant: £1,120,000
    “London Councils represents London’s 32 boroughs and the City of London.”


    Capita Kensington and Chelsea Council –

    Atos-Capita Southwark Council-

    Capita Westminster Council-

    Capita Wandsworth and Richmond Councils-

    (probably endless)


    ATOS Local Government –

    CAPITA Local Government –
    “Assessments and reviews – Capita Local Government can help local authorities deliver care assessments and reviews to shrink immediate backlogs, reduce long-term demand..”
    “We can help you deliver care assessments and reviews in the way that suits you. With access to over 2,000 social workers and occupational therapists across Capita”
    “We have tried and tested ways to successfully commercialise services and secure external funding that bring in new revenue streams to your organisation.”

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