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Mother loses Judicial Review of care package for disabled son

Our People - Maria Nicholas
28 August, 2013

A mother fighting as litigation friend on behalf of her 17 year old disabled son has recently lost a judicial review claim in the High Court against Worcestershire County Council.

The claim sought to overturn the Council’s policy to impose a maximum spend on providing care to disabled individuals in their own home. The maximum spend cap is proposed to be set at “no more than the net weekly cost… of a care home placement that could be commissioned to meet the individual’s assessed eligible needs”.

The effect of such a cap on spending means that for this particular young man and others like him, residential care may become the only viable option.

Mr Justice Hickinbottom said that nobody should be forced into living in residential care, but the reality is that if appropriate care will not be provided to someone in their own home, they may be left with no other realistic option but to go into residential care. 

The outcome of this case may mean that other local authorities will also now seek to implement a similar policy.

It should be noted that in this case the Council argued that the young man in question may never be subject to the policy because, they argued, his needs were not so high as to warrant a level of care that would be as expensive as a residential care package. The young man’s position, advanced by his litigation friend his mother, was that he would need 24 hour care although she did not have professional evidence to substantiate this. Although this did not in the end play a big part in the final decision, it may be an important point to bear in mind if you are bringing a similar case.

The other important point is that this claim was based on procedural grounds, i.e. the claim was challenging the procedure the Council followed in preparing this policy but not the substance of the policy. The claim ultimately failed because the Court did not find that the Council had done anything wrong procedurally.

These two points are important because it may be possible in a different set of circumstances and based on different grounds to challenge a similar policy brought in by another local authority.

Head of Court of Protection
Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

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