Son’s appeal for 24-hour one-to-one care for dementia-suffering mother refused

A man acting under a power of attorney who challenged the lawfulness of a Scottish local authority’s decisions relating to the provision of community care services to his elderly mother has had his appeal refused.

The petitioner and reclaimer “PQ” claimed that the respondent Glasgow City Council should pay for his dementia-suffering mother’s 24-hour one-to-one care at home and argued that the local authority failed to perform its statutory duty under section 12A of the Social Work (Scotland) Act 1968 to properly assess her support needs and provide appropriate services.

However, the Inner House of the Court of Session upheld the decisions of the Lord Ordinary to dismiss the petition for judicial review.

Lord Brodie, Lord Drummond Young and Lord Malcolm heard that the reclaimer’s 87-year-old mother, who suffers from peripheral vascular disease and vascular dementia, was admitted to a nursing home in April 2010 following a council commissioned assessment of her care needs, which found that she needed 24-hour care but added that due to “financial implications” placement in nursing care was required “urgently”.

The following month she was admitted to hospital and underwent a below knee amputation in one leg, after which she returned home for what was intended to be a short break, but she has remained there ever since.

Shortly after Mrs Q’s return home the respondent carried out a further assessment of her needs and up to 1 November 2012 weekly direct payments of £594.70 were made to the petitioner to pay for her community care services, which were reduced to £493.36 per week following a review.

The court was told that Mrs Q has continued to reside in her one-bedroom bungalow and has been “exceptionally well” cared for under the round-the-clock care arrangements made on her behalf by her son, with the cost of these service being funded, in part, by direct payments made by the council.

The petitioner argued that his mother should continue to enjoy her current high level of care, as she was constantly at risk of falling and required to be cared for at home with 24-hour care on a one-to-one basis.

However, the respondent’s assessment concluded that Mrs Q’s needs could be adequately met within a nursing home and accordingly at a lesser cost than that required to provide 24-hour one-to-one care at home, but the petitioner argued that no nursing home would provide the kind of one-to-one care required, which was the nub of the dispute between the parties which the resulted in the petitioner bringing the petition for judicial review.

The reclaimer challenged the lawfulness of two decisions relating to the assessment of the level of Mrs Q’s needs and the calculation of the direct payment consequential on that assessment and appealed against the Lord Ordinary’s dismissal of the petition.

On behalf of the reclaimer, counsel submitted that the Lord Ordinary erred in his finding that support needs assessment was not unreasonable or irrational; as he was “misled” as to the qualifications of the author of the assessment and therefore his decision should be reversed, but the appeal judges described the claim as “wholly without merit”.

It was also submitted that the Lord Ordinary erred in his finding that there was a proper and rational basis for calculation of direct payment being made by the respondent to Mrs Q.

Counsel for the respondent submitted that the reclaimer’s contention, although articulated as a rationality challenge, was truly no more than a merits challenge, in other words an argument to the effect that on the facts a different judgement should have been made as to the nature and extent of the services which Mrs Q’s needs call for; which, counsel submitted, was not a question for the court.

The judges agreed with the submissions of the respondent and were not persuaded that either of the decisions challenged by the petitioner was irrational and therefore unlawful.

Delivering the opinion of the court, Lord Brodie said: “That Mrs Q’s combination of impairments puts her at particular risk of falling and the opinions expressed in the expert reports relied on by the reclaimer may provide support for the proposition that Mrs Q’s needs call for one-to-one care, but it does not follow that the respondent’s assessment which concludes that these needs call for a less intensive degree of care is irrational or perverse. The support needs assessment was carried out by a social worker assisted by an occupational therapist and a district nurse. On the basis of their consideration of what is the relevant material they came to a different conclusion from that expressed in the reports relied on by the reclaimer. That is a difference of opinion on a question of judgement which by its nature may admit of more than one answer. It does not demonstrate perversity.”

In relation to the second ground of appeal, on the calculation of the payment, he added: “Although articulated in terms of irrationality the second ground of appeal can be said to focus on reasons; the sufficiency of the reasons that were given and the absence of reasons which were not given. We have no difficulty with the proposition that where a local authority has a duty to make a reasonable estimate of the amount of money which is intended for the provision of community care services, the estimate requires to be made on a rational basis which should be amenable to explanation and, further, that this explanation should be provided to the supported person.

“What ‘the local authority considers is a reasonable estimate’ is just that. It is for the local authority and not anyone else to make. It is an estimate rather than anything more precise, and while it must be reasonable, as is very familiar, that is a concept which affords significant leeway to the designated decision-maker. Here the respondent arrived at what it considered to be a reasonable estimate of the cost of securing the relevant services for Mrs Q having regard to the level of the cost charged by nursing homes within its local authority area for providing equivalent services.”

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