Killian Flood BL

About this case:

• Court:
  High Court
• Judge:
  Mr Justice Adrian Colton

The court said that the decision taken by the Trust to reduce care services from March 2020 was reasonable due to the prevailing circumstances at the time and the Trust had engaged significantly to try and provide as much care as possible for the men.

The applicant was the mother of the men, who claimed that the Health Trust was in breach of its duties under section 2 of the Chronically Sick and Disabled Persons (Northern Ireland) Act 1978. Specifically, it was alleged that the Trust was not entitled to unilaterally reduce the care given to the men when their needs had not changed since their last assessment in July 2019. However, the court ultimately ruled that the pandemic made it impossible for the Trust to continue providing the same level of care.

Background

The applicant was the mother and primary care-giver for the two men, referred to as J and L. The older brother had diagnoses of global development delay and epilepsy, while the younger brother was diagnosed with Autism Spectrum Disorder. Both men were severally disabled and required care in all aspects of daily life.

The Trust was an organisation which provided health and social care for disabled people. The Trust had made assessments of the J and L’s needs at several points since 2012, with their needs being confirmed in 2019. These needs were 1) day care for 7 hours a day between Monday and Friday at the Trust’s ML centre, 2) domiciliary care every Friday for 4 hours and 3) overnight respite care to support the applicant in her caring role for 38 days per year. The Trust also assessed the men as requiring transport services.

Following the emergence of the pandemic, the Trust stopped providing care to the men. Since March 2020, care had been provided on a fluctuating and increased basis, although was not at the same level as before. By the time of the trial, J and L were receiving day care for four days a week, with domiciliary care and transport resumed as well. The Trust had also provided 15 nights of respite care to the applicant during the pandemic.

The central claim made by the applicant was that it was impermissible for the Trust to reduce the care levels afforded to J and L when there was no review or reassessment of their needs under section 2 of the 1978 Act. The applicant relied on the decisions in R v Gloucestershire County Council and Secretary of Health, ex parte Barry [1997] AC 584, LW (Acting by her mother JB) Application [2010] NIQB 62 and R (KM) v Cambridgeshire County Council [2012] UKSC 23. These cases provided that, when meeting the needs of a disabled person, an authority had to engage in “three separate tasks”.

First, the needs of the person had to be assessed. Second, the authority had to determine whether it was necessary to provide services to the disabled person. Third, the authority had to determine the nature and extent of the services.

The case law provided that financial or resource-based reductions in care could only be taken into account in the first two stages, but not at the third. At the third stage, there was an enforceable duty on the authority to provide the care. The applicant claimed that the Trust had reduced care at this third stage and had therefore acted unlawfully.

High Court decision

After outlining the relevant factual background and case law, Mr Justice Adrian Colton held that it would be “completely artificial and unrealistic” if the impugned services could not be lawfully reviewed or reassessed in light of the prevailing public health emergency from March 2020. The court noted that the Trust had engaged extensively with the applicant seeking to restore care levels and it was claimed that these engagements amounted to reassessments justifying the reduction in care.

The court held that the reviews could properly be interpreted as “stage two” reviews and that therefore the respondent could lawfully reduce the service. However, Mr Justice Colton said that this was not a “blank cheque” for the respondent. It was simply the case that the consequences of the pandemic were a relevant factor when assessing the necessary arrangements for the men while restrictions were imposed.

The court said that the Trust made every effort to restore care to the men, but that it was also compelled to do so in a safe manner to prevent a risk of infection. This was especially important when dealing with vulnerable disabled people.

The judge accepted that the changes in care caused huge upset to J and L, and the applicant who was reliant on the service. However, the onset of Covid-19 made it impossible to provide the same level of care as before the pandemic. As such, the court held that it was entitled to allow a period of time to the Trust to comply with its obligations “either by reopening the facility in a safe manner or providing reasonable alternatives”.

The court was satisfied that this reasonable period for compliance by the Trust had not yet elapsed and that reasonable alternatives were provided in the context of the Covid-19 restrictions.

Conclusion

The court concluded that there had been no breach of the Trust’s duty under the 1978 Act and the needs of J and L had lawfully been reassessed due to the difficulties arising from the pandemic. The application for judicial review was refused.