Louisa G v Wandsworth

The Claimant is a 94 year old woman who has lived in a flat in a registered residential care home in Battersea since December 1996. The home is owned and managed by Servite Houses, a charitable housing association. The Defendant is the local social services authority responsible for the provision of community care services. The Claimant’s placement is partly funded by the Defendant and partly funded from the Claimant’s benefits. On 25 May 2003 she fell and fractured her femur. She was admitted to the Chelsea and Westminster hospital and was medically fit for discharge from 9 June. She was, however, not discharged because the Defendant was not willing for her to return to her flat in the home. It considers her level of need now is such that she should be accommodated in a registered nursing home. Her litigation friend, a devoted daughter, considers that she should continue to live at the home. The Claimant, through her, challenges the Defendant’s decision to refuse to allow her to return to the home and to place her in a nursing home. The decision was first taken on 13 August but was confirmed after these proceedings were launched on 21 August at a meeting held on 6 October.

It appears that at the time of the Claimant’s move to the residential home in 1996 she was given assurances by Servite Houses that it would be her home for life unless her medical condition deteriorated to the point where she required specialist nursing care. In 1999 Servite decided to close the home as a residential home, and to use it for sheltered housing. The Claimant and another resident challenged the decision by way of Judicial Review. The application was dismissed by Moses J on the grounds that Servite, a private body, was not amenable to Judicial Review. The Claimant appealed. The appeal was settled by way of a Consent Order under which Servite agreed to continue to provide residential accommodation with board and care to the Claimant and the other resident. This obligation was to continue until there was a lawful local authority community care assessment stating that their assessed needs could no longer be met at the home and/or that nursing care is required such that it would not be lawful for her to remain at the home. The home is registered to provide residential care. It is not registered to provide nursing care.

The application for permission came before Burton J on 25 September 2003. Burton J ordered the application for permission to be heard with the substantive hearing and adjourned it to 14 October to enable the parties to discuss the nature and extent of the Claimant’s needs. A meeting attended by the Claimant’s daughter and litigation friend, a friend of hers, Mr Vincent Kelly, the Defendant’s Social Work Manager responsible for this case, Dr Cottee, a consultant geriatrician at the Chelsea and Westminster Hospital, legal representatives and an employee of the Defendant’s took place on 6 October. The Claimant’s litigation friend sought to persuade the Defendant that her mother could remain in the residential home but was unsuccessful. On 14 October the matter came before Jackson J. It was again adjourned on the following basis. First, that the Claimant’s litigation friend and the Defendant agreed to meet with other relevant parties to discuss possible nursing home placements and levels of care and facilities for the Claimant. Secondly, that she should return to the home on an interim basis with her daughter arranging and funding the provision of professional 24 hour nursing care for her and the Defendant paying the weekly contribution to her residential charges. She returned to the home on 20 October 2003.

By Section 47 of the National Health Service and Community Care Act 1990 (“the 1990 Act”);

By Section 46(3) of the 1990 Act “community care services” are defined as services provided under a number of enactments including Part III of the National Assistance Act 1948 as amended (“the 1948 Act”). Section 21 of the 1948 Act falls within Part III, and provides:

Section 26 of the 1948 Act enables arrangements under Section 21, in specified circumstances, to include arrangements made with a voluntary organisation or with any other person who is not a local authority. Section 26 was amended by the Care Standards Act 2000 which inter alia inserted section 26(1A –1D). By section 26(1A):

By Section 26(1C):

By Section 49 of the Health and Social Care Act 2001 (“the 2001 Act”):

The legislation thus creates a duty to assess the needs of persons who may be in need of community care services and, where a person falls within Section 21(1)(a) of the 1948 Act, to provide residential accommodation for that person. Since 2001 arrangements for the provision of accommodation with nursing can only be made with the consent of the primary care trust or the health authority. Previously (and at the time of the consent order) they were made by the local authority. Those providing accommodation with nursing care must be appropriately registered under the Care Standards Act 2000.

As well as the legislation, it is necessary to consider guidance and directions issued by the government in relation to the social services and care functions of local authorities. By Section 7(1) of the Local Authority Social Services Act 1970:

Section 7A of the 1970 Act requires local authorities to exercise their social services functions in accordance with any such directions as may be given to them by the Secretary of State.

The National Assistance Act 1948 (Choice of Accommodation) Directions 1992 LAC (92)27 sought to ensure that individuals who are to be placed in residential and nursing homes are able to exercise a genuine choice over where they live. They require local authorities to arrange for care in the accommodation of the person’s choice provided that it is suitable in relation to the person’s assessed needs and it does not cost the authority more than it would usually expect to pay for someone with the individual’s needs.

Policy Guidance concerning the 1990 Act states that care management will play a key part in achieving the government’s objectives for community care. This will be done inter alia by “restoring and maintaining independence by enabling people to live in the community wherever possible”, and by “promoting individual choice and self-determination, and building on existing strengths and care resources” (paragraph 3.3). The section of the Guidance on assessment states:

The section on care plans states (paragraph 3.24):

support for the user in his or her own home…..

a move to more suitable accommodation…..

a move to another private household….

residential care

nursing home care

long stay care in hospital.”

The Department of Health has also issued a practitioner’s guide, which provides:

Directions concerning Section 49 of the 2001 Act are contained in the National Health Service (Nursing Care in Residential Accommodation) (England) Directions 2001 LAC(2001)26. This inter alia directs Health Authority Chief Executives and Primary Care Trusts Chief Executives to discuss the guidance:

As well as National Guidance and Directions, in March 2003 the South West London Strategic Health Authority and a number of London Borough Councils, including the Defendant, entered into an agreement entitled “NHS and Local Authority Responsibilities for meeting Continuing Care Needs”. This agreement was made pursuant to the Department of Health’s Guidance on Nursing Care and Residential Accommodation. Miss Richards, on behalf of the Claimant, described this agreement as containing the Defendant’s policy. Miss Laing, on behalf of the Defendant, submitted that the Defendant followed and properly applied the criteria in it.

The agreement states that the Guidance in it is to assist in the promotion of better practice in assessing the health and social care needs of people who need care support from the NHS and social service departments. It is part of a programme which aims to achieve a number of objectives, including “that decisions about how needs are met and how risks to health are addressed are made as far as possible in full partnership with the people concerned, their carers and relatives where appropriate”.

Section 1.3 of the agreement states that all patients requiring continuing care will fall into one of three categories. Level 1, which is not relevant in the present case, concerns 100% NHS funding care. Level 2, “continuing health and social care”, is “a package of care which both NHS and social services contribute to. The NHS input may include registered nursing care contributions for those people in a care home with nursing, plus in all settings other NHS services….”. Level 3 is local authority funded care, applicable where the local authorities responsible for the totality of the care package and there are no additional health care needs input, apart from the usual access to primary care and health services as required”.

In the present case the issue is whether the Claimant should be assessed at Level 2 or at Level 3 and, if at Level 2, whether her particular circumstances require her to be placed in a registered nursing home.

The agreement contains tables indicating in respect of Levels 2 and 3 the care characteristics and criteria, the services available, and the care options. It is stated that those requiring health input as part of a Level 2 package of care may, for example, have: a progressive medical condition that is likely to result in an increase of dependency; mobility needs requiring the skilled assistance of more than one person for the majority of transfers; single or double incontinence which is controlled/managed by the use of drugs, toileting regimes catheterisation, or incontinence pads; and cognition impairment or lack of motivation which places them at risk of self-harm, neglect or exploitation. It is clear from the agreement that the services available as part of a level 2 package include health care input to people resident in care homes and in their own homes as well as those who are in nursing homes.

The care characteristics at Level 3 include people who need help with washing, dressing, toileting and meals but who are able to transfer from a wheel chair with or without assistance of one other; who are occasionally incontinent or whose incontinence (single or double) is manageable using incontinence aids; and who have a degree of cognitive impairment but do not need psychiatric nursing care or continuous individual supervision arising from extreme behavioural disturbance.

Part 2 of the agreement contains guidance on the process and implementation of the criteria, including assessments. It is stated in Section 2.2 that there should be a single assessment process. Section 2.3 describes the joint health and social services continuing care panel. It recommends that completed continuing NHS health care assessments to be read at the panel should be co-ordinated by one central point within the primary care trust so that the assessments can be checked for completeness before being forwarded to the decision making members of the panel. It is said that it is important that the panel has a balanced representation of social services and primary care trust members and that each carries the delegated authority of their respective organisations to agree the assessed level of care and individual needs. Paragraph 2.4 states “decisions on levels of care should be based on fully completed assessment materials, this should include either: a single assessment document or full community care needs assessment and nursing needs assessment together with the completed medical report and relevant therapy reports”. It also states “all decisions at panel should be minuted and in addition recorded on the pro forma….which outlines the rationale for the decision against the criteria. All parties must be informed in writing of [the decision]”.

The Court has before it the community care and other assessments relating to the Claimant and medical, nursing, physiotherapy and occupational therapy reports. There were 3 statements by the Claimant’s litigation friend and daughter. The first is dated 15 August 2003, the second, the 23 September and the third, undated and unsigned is in the most recent Court bundle. Miss Sarah Lerner, a partner in the Claimant’s solicitors made a statement on 10 October, prepared by her on the basis of a draft made by Louise Arthurs, a solicitor who attended part of the important meeting on 6 October but who was unable to complete her statement before she went on annual leave, due to computer problems. This statement contains an account of the entire meeting although Louise Arthurs arrived during the course of it. What is described as a combined note of the meeting is exhibited to the statement. A note of the meeting was also prepared by an employee of the Defendant and their counsel, and checked by Vincent Kelly, the Defendant’s Social Work Manager responsible for this case. This states that Louise Arthurs arrived at 10.50 as discussion of a letter containing Dr Cottee’s views was concluding and that the Claimant’s litigation friend explained what had been discussed.

The most recent bundle contains reports on the Claimant since her discharge from hospital on 20 October. There is a statement dated 19 November by Louise Arthurs exhibiting a report by Dr Powell, a consultant psychiatrist specialising in the care of older people and working in North West London who saw the Claimant at the home on 10 November and spoke to her carer, to one of the BUPA nurses looking after her, and to the Claimant’s litigation friend. It also contains a report dated 27 October by Holly Ashforth, the sister on the hospital ward in which the Claimant was, about her condition and care needs in the period immediately before her discharge on 20 October. An earlier report by Sister Ashforth dated 13 June had been before the Defendant’s Continuing Care Panel.

Finally, there is a document entitled “Report on nursing input 20 October to 16 November 2003” by the nurses supplied by BUPA Nursing Services to provide 24 hour nurse cover to the Claimant following her return to the residential home. The copy in the Court bundle was unsigned and undated but Miss Richards stated that four of the 5 nurses had signed it, and the fifth nurse, named with the others at the end of the report, agreed with it subject to 2 caveats. Miss Richards stated that the report had been prepared by the Claimant’s litigation friend and daughter in consultation with the nurses and on the basis of the records they had kept and observations they had made to her. She stated that the report uses the words from the nurses’ record sheets (which were not before the Court). A draft had been discussed with the four remaining members of the team looking after the Claimant and altered in the light of that discussion. Miss Richards accepts that it is not an expert report but submits it should be considered on the same basis as the hospital reports hospital exhibited to other statements since it stated what the nurses who cared for the Claimant at home had done and showed their views.

Vincent Kelly made 2 witness statements, one on 10 October 2003 and the second on 24 November, after the receipt of the evidence concerning the Claimant’s condition shortly before and after her discharge from hospital on 20 November.

Since living in the residential home, the Claimant has been admitted to hospital twice. In 1998 she was hospitalised for 3 weeks due to haemorrhaging, septicaemia and a urinary tract infection. Her daughter recorded in October 1998 that she was intermittently incontinent. In the summer of 2001 she was admitted to hospital with a serious infection. On both occasions she was discharged to the residential home and, although she needed additional support for a short time, gradually recovered fully. Her community care assessment by the Defendant in 2000 noted that her health fluctuated quite dramatically due to regular infections. When unwell it is stated that she was at risk of falling and had done so on regular occasions. She was stated to have presented as mentally alert although she became extremely anxious when unwell and then needed constant reassurance.

Following the Claimant’s discharge from hospital in 2001 Leigh Jones, a Senior Social Worker employed by the Defendant, reassessed her needs. At a meeting at the home it was agreed that her care needs at that time could be met by care staff in a residential setting with back up by District Nurses and the GP. A further review a month later on 24 September noted that she had improved. Servite’s care plan dated 4 March 2003 stated that her needs fluctuated enormously, that she was sometimes incontinent. It is stated that the care plan only applied when she was well. It was said that an appropriately adjusted plan would be compiled when she had another episode of ill health. It described her as a little confused and forgetful.

Since 1996 the Defendant has assessed the Claimant as requiring residential care in a registered care home. Miss Richards submits that the picture prior to her admission to hospital in May 2003 was one of fluctuating health with intense needs when unwell but with improvement on return to the home after her periods in hospital. Apart from the Claimant and the other person who benefits from the consent order, the residents of the home are housing tenants with significantly less care needs. The Claimant’s care regime at the home has been 70% of a dedicated care worker on a 14 hour day-time shift and night staff.

After the Claimant was found to be medically fit for discharge from hospital on 9 June 2003, there was, on 12 June, a meeting in her ward at the hospital. This meeting was attended by representative staff from the hospital, and the home, by Mrs Jean Graham, a Senior Social Worker employed by the Defendant responsible for the Claimant’s case, and by the Claimant’s litigation friend and daughter. The Claimant’s litigation friend states that all those present agreed that the Claimant had social care needs and not nursing care needs. She states that the Defendant was not willing for the Claimant to be discharged back to the residential home. The Defendant does not, however, accept that the position of the supervising medical team and the nursing staff at the hospital was that the Claimant did not require nursing care.

As a result of what was said at that meeting Mrs Graham’s initial assessment was that the Claimant’s needs would be likely to require nursing and not residential care. In a letter dated 25 July in response to the Claimant’s solicitors’ letter before action, Mr Kelly stated that Mrs Graham had informed the meeting that the Claimant’s nursing care needs would need to be determined under the NHS continuing care criteria and undertook to set this process in motion. She referred the matter to the Defendant’s Continuing Health and Social Care Panel. Her brief to the Panel, dated 3^rd July, states that the Claimant’s level of functioning and mobility appeared to have deteriorated since the fracture, that extra care would be needed, and that the Claimant needed a higher level of care than could be provided at her residential home. She stated that in order for the Claimant to return to the home additional funding would be required and enclosed reports prepared.

The Continuing Care Panel met on 8 July and considered reports prepared in June and early July by social services, the hospital, and the primary care trust. From the hospital there were medical, nursing, night nursing, physiotherapy and OT reports. From the primary care trust there was a physiotherapy report and a nursing needs assessment. These described the Claimant as needing two people on a bad day to help her to transfer and assistance three to four times during the night. There are references to cognitive problems, disorientation and confusion. The Panel also had before it a document by the Claimant’s litigation friend and her sister, expressing their views as to what should happen and their disappointment at not being permitted to attend the meeting of the Panel.

The Panel concluded that the Claimant had nursing care needs at Level 2 and recommended that they should be met in a nursing home. The Claimant’s litigation friend and daughter was notified of the decision by telephone later the same day. She had asked to attend the meeting but was informed by Mrs Graham that she could not attend as the Panel was considering clinical evidence only. As a result the Claimant’s solicitors wrote to the Defendant stating that the decision, taken on observations made in the first few weeks of the Claimant’s hospitalisation and without an up-to-date Community Care Assessment, was unlawful. They asked that the decision be withdrawn and that the Claimant be returned to her home with extra care provided to help her to manage while her hip was mending. They informed the Defendant that failing a satisfactory response Judicial Review proceedings would be instituted.

On 17 July 2003 a Community Care Assessment was undertaken by Ann Forster, one of the Defendant’s Social Work Team Managers. Miss Forster met the Claimant and the Claimant’s litigation friend. Her report stated that the Claimant needed supervision and all support of one person with all activities of daily living. There is a detailed assessment of needs in Section 9 of the report in which the designated action in many of the fields is “to seek to provide this care in her present residential setting if practical and safe in all other aspects of her care”. The overall conclusion was that the Claimant had “made a good recovery from her injuries and surgery and would appear to me when I saw her on 16 July 2003 to be residential care fit”. She noted the conclusion of the Panel a week earlier that the Claimant’s clinical nursing needs indicated she required nursing care but stated that should her clinical situation remain as it was on the day she saw her the Chair of the Panel should review the decision.

Servite re-assessed the Claimant’s care needs on 21 July. Their report states that the assessment was difficult to conduct in view of the lack of information during the visit. It is, however, stated that, although in view of her age and the injuries she had made a remarkable recovery, there were significant risks involved with her mobility, she did not cognitively have the ability to use the aid call system, and there was a difference of view as between the nursing staff and the physiotherapist as to whether one or two members of staff were required to provide personal care and assistance with walking. The Claimant’s litigation friend telephoned the home and was told that it could meet her mother’s needs but needed extra care hours to be funded.

I have referred to Mr Kelly’s response on 25 July to the letter before action. His letter set out the history and stated that, in view of the conclusions of the Panel and its recommendation, the Council would normally expect to meet its obligations under Section 21 of the 1948 Act to someone with the Claimant’s assessed level of nursing care needs in a registered nursing home. He stated that in view of Miss Forster’s report which showed improvement and a reduced level of dependency by the Claimant further assessment and consideration was being given to her changing needs and how to meet them appropriately. Mr Kelly met the Claimant’s litigation friend on 29 July. He maintained the view that the Claimant’s needs could not be met at the residential home and told her that the Defendant would not allow the Claimant to go back to the home.

On 1 August Mr Kelly again wrote to the Claimant’s solicitors. This letter notes the difference of opinion between the Defendant and the Claimant’s litigation friend. Whilst it was the Defendant’s view that the Claimant’s needs could no longer be met at the home, her daughter considered that if additional resources were employed it would be possible for her to remain there. Mr Kelly stated that it was clear that, even if this was the case, the additional resources would increase the costs of the Claimant’s placement at the home to a level far in excess of what the Council would expect to pay having regard to her needs. However, in view of the difference between the recommendation of the Panel and Miss Forster’s report, he had arranged for a further Nursing Care Needs Assessment to be completed as a matter of urgency. The Claimant’s solicitors asked for information about the financial provision being made and costs. On 4 August Mr Kelly responded stating he did not consider it appropriate to give them details about this. He also stated that the reason the Claimant’s needs could no longer be met at the home was that it was clear from the assessment report that she required constant supervision which was not available there.

On 11 August there were two developments. First, Servite indicated that it could accept the Claimant back if additional resources were provided. Secondly, the further Nursing Care Needs assessment was initiated by a letter from Mrs Graham to Dr Cottee, a consultant geriatrician at the hospital. She stated that the current view of the professionals involved with the Claimant is that her needs are too high for her to return to the residential home she was in. She asked Dr Cottee to consider recent reports about the Claimant and “confirm to us that the previous decision made at the Continuing Care Panel on 8 July [was] still accurate i.e. that she meets the criteria of Band 2 medium”. The reason for writing to Dr Cottee was that Dr Coles, the consultant in geriatric medicine who chaired the Panel was on leave. Dr Cottee responded on 12 August stating that the Claimant’s needs were consistent with Level 2 medium nursing care. He stated that the reports indicated that she met the criteria relating to incontinence, administration of medication, and cognitive impairment. The last paragraph of his letter states that “[d]ue to her cognitive impairment and the variability of her condition, [the Claimant] should have access to a nurse on a daily basis and may need access to a nurse at any time. [Her] condition needs to be monitored on a daily basis in order to determine whether she may be having “a bad day” or whether she may be unwell. This requires the knowledge and skills of a nurse”. The Claimant’s litigation friend complains that she was not informed of the reference to Dr Cottee, to this letter, or to his views and not given any opportunity to make representations or to provide further information to him. Moreover, Miss Forster’s Community Care Assessment was not one of the reports sent to him.

The Claimant’s litigation friend met Mr Kelly again on 13 August. He told her that the Claimant’s needs could not be met at the residential home and handed her a letter stating that the service to be provided was “care in a nursing care unit to be agreed with the litigation friend”. Proceedings were issued on 21 August and, following an acknowledgment of service by the Defendant on 29 August the matter came before Burton J on 25 September.

Following the adjournment by Burton J, on 6 October the meeting to discuss the nature and extent of the Claimant’s needs to which I have referred took place. The meeting lasted from about 10.00 am to noon. The Claimant’s note states it started at 10.00 am; that by the Defendant that it started at 10.16. Dr Cottee was there until 11.30 when he left to attend another engagement. It appears from a report by Dr Cottee dated 10 October that prior to the meeting he had been asked to re-review the case and was provided with updated versions of the reports he had previously been sent and with Miss Forster’s Community Care Assessment. Sarah Lerner’s statement lists a medical assessment for care management and a hospital nursing report both dated 26 September 2003, a physiotherapy report dated 29 September, and a nursing report on continence dated 5 October.

At the meeting the Claimant’s litigation friend put her points to Dr Cottee. He stated that the extra information she had given him confirmed and reinforced his view that Level 2 medium care was required. He also said that his role was to assess the information provided by the professionals against the Defendant’s agreed criteria. He could not say where the care was to be delivered. Mr Kelly took little part in the discussion at that stage but, after Dr Cottee left, he stated that the Claimant’s assessed care needs were nursing care and the current assessment of care needs required her to be in a nursing environment. Dr Cottee had made the point that there was a need for immediate access to nursing carers and this could not be provided in the residential home. In his report dated 10 October, Dr Cottee stated that “the need to continuously monitor [the Claimant’s] oral fluid intake and the variability of the required dosage of analgesia… should ideally be overseen by qualified nursing staff” and noted that she had an abbreviated mental test score of 0/10, the lowest score possible. He considered that she had failed to make any significant improvement despite many physiotherapy and occupational treatments.

In his first witness statement Mr Kelly states that the local processes for continuing care entail a physician for elderly medicine forming a view as to a person’s needs. He explains that since the assessments are made on the basis of clinical reports and an important purpose is that there is consistency of approach, it is not necessary for those making decisions about care needs to have direct knowledge of the person being assessed. He states that it would also not be practicable for assessors to have direct knowledge of those being assessed. The view of Dr Cottee, a consultant with many years experience of the local continuing care criteria was initially based on his review of the reports in August and this was confirmed at the meeting on 6 October. Mr Kelly states that the Defendant has considered Dr Cottee’s decision and has given considerable weight to it. As a result it remains the Defendant’s view that the Claimant requires nursing care in a nursing home environment. The Defendant did not consider that the outcome of the Panel, which considered objective factual information about the patient and sought to provide consistency of approach, was predetermined in any way. In his second witness statement Mr Kelly states that the Defendant has not automatically decided that just because a need for nursing care has been identified the Claimant must be in a nursing home. He states that in the Claimant’s case this follows from Dr Cottee’s opinion that she “should have access to a nurse on a daily basis and may need access to a nurse at any time; and her condition needs to be monitored on a daily basis in order to determine whether she is having a “bad day” or whether she may be unwell. This requires the knowledge and skills of a trained nurse”. While Mr Kelly accepts that for some or most of the time care can be given to the Claimant by carers who are not trained nurses, he considers that in view of the fluctuating nature of her condition she should be in an environment in which there is instant access to a trained nurse should the need arise. This would not be the case at a residential home.

I have stated that, following the hearing before Jackson J, the Claimant was discharged from hospital and returned to the residential home on the basis that her litigation friend and daughter would fund 24 hour nursing care. On 24 October Mrs Graham rang Caroline Franceschina, the manager of the home, to ask for an up-date following the Claimant’s return. Ms Franceschina told her that for the first three days the Claimant was very tired and was asking to go home. She had been incontinent and had spread the incontinence problem around the flat by walking. She was refusing to accept care, was disorientated, anxious and unsteady on her feet. Ms Franceschina stated that she was being consulted about decisions that she considered should be made by a nurse, for example as to the need for a ripple mattress, a raised toilet seat, more pain relief. Mrs Graham saw the Claimant at the home on 27 October and found her sitting quietly in her chair and quite calm.

In her third witness statement the Claimant’s daughter states that “for the first few days my mother was clearly relieved to be at home but understandably a little anxious and bewildered and there were a few small hiccups whilst she was settling down. However, she rapidly did settle down and is once again completely contented and secure….”. She also states that “to all intents and purposes my mother is performing at the level at which she was functioning prior to her admission to hospital. Her care needs have not changed at all and her care plan has only required minor adjustments. Her key worker is clear that her needs have not significantly changed and that things are “back to normal”.”

There is also professional support for this view. Dr Powell, a consultant psychiatrist, assessed the Claimant at her solicitors’ request. He concluded that she had a long history of declining intellectual functioning and growing care needs, the most likely diagnosis being multi-infarct dementia, a progressive condition, and that she clearly falls within the category of people suffering from severe dementia. Although technically in a residential home, she is receiving greatly more care than would normally be provided in such circumstances. He states that “her current care needs are adequately met and indeed the care provided exceeds those needs. The nursing care which has been offered seems redundant and even without that her care package is more than adequate”. He believed that the Claimant was “adequately placed and cared for and that her placement at [the home] even without the nursing care is more than adequate for her needs”. He believes that the Claimant’s needs are Level 3 rather than Level 2. He explains the difference between his opinion and Dr Cottee’s as flowing from the fact that Dr Cottee’s opinion was based on reports on the Claimant’s functioning whilst an in-patient when her level of functioning would have been severely impaired compared with her normal background level and because of his view that there was a tendency in hospitals to keep older patients in bed reducing the level of their general activity.

Dr Powell also states that although the Claimant’s litigation friend’s filial duty, determination and professionalism are exemplary, her insistence on prescribing the level of input for her mother produced a paradoxical effect. On the one hand she insists that her mother should remain at the home and that she needs residential care. Yet, at the same time she states that her mother requires hugely more care than would normally be considered necessary in a residential home and which indeed would not even be available in a nursing home. She insists that under no circumstances would it be acceptable for her mother to receive less than the care she receives presently. Dr Powell states, that, ironically, were the Claimant’s needs to increase greatly and a transfer to a nursing home became necessary the amount of daily care that she would receive would be considerably reduced.

The report dealing with the observations and views of the nurses from BUPA Nursing Services states that the Claimant does not require nursing care and that they were not required to undertake nursing functions while they were there. Finally, Sister Ashworth, who was responsible for the Claimant whilst she was still in hospital reported on the level of input the Claimant required during the latter part of her stay in hospital. Sister Ashworth’s view is that the input required then does not need to be done by a qualified nurse.

Mr Kelly states in his second witness statement that until he received it on 20 November with the other new material reporting on the Claimant’s condition immediately before her discharge and since her return to the home he did not know the Claimant intended to serve a medical report. He states Dr Cottee has only been able to consider Dr Powell’s report briefly, and to pass his comments to Mr Kelly in a telephone conversation. He reports that Dr Cottee stated that that Dr Powell’s report does not change his view. The aim of local practice is to achieve a level of consistency as between cases considered under the South West London’s Continuing Care Criteria. He inter alia notes that the Claimant’s position on continency has not changed, that Dr Powell has not taken account of the safety of her mobility or transfers which is crucial to assessing her dependency, and that Dr Powell’s observation on the very high level of personal care she is receiving illustrates the level of management which is needed to enable her to present as she does, with an apparent low level of need. He states that her level of need is much higher but is masked by the high level of care.

Mr Kelly, while not accepting statement in the BUPA Nursing Services report that no nursing care has been required in the last four weeks, states that even if that is so, it is not conclusive. This is because the Defendant’s view, based on Dr Cottee’s opinion, is that the fluctuating nature of the Claimant’s condition means she should be in an environment in which there is instant access to a trained nurse should the need arise. He states that the Defendant’s position is that, notwithstanding the new information, the Claimant’s care needs remain the same and a nursing placement is indicated because of the variable nature of those needs.

The Defendant, pursuant to the basis upon which Jackson J adjourned the hearing in October, has sent the Claimant’s litigation friend a list of nursing home vacancies and has sought to identify appropriate homes. On 12 November the Claimant was assessed by the representatives of two homes for which her litigation friend expressed a preference.

Mrs Coffie of Heritage Care Centre wrote to the Claimant’s litigation friend on 14 November stating that on the evidence presented during her visit both visually and documentarily the Claimant does not currently require nursing care. After Mr Kelly spoke to their representative she agreed to re-assess the Claimant on her return from leave. The other possibility, Meadbank, informed Mrs Graham that although they could meet the Claimant’s needs they would find it difficult to meet the expectations of the Claimant’s litigation friend and were not prepared to offer her a place.

On behalf of the Claimant, Miss Richards has mounted a wide-ranging attack on the Defendant’s decision-making process. She has deployed many of the weapons in the public law armoury; defective process, failure properly to apply its policy, rigid adherence to a mistaken view of policy, unreasonableness, failure to take account of relevant considerations, unlawful delegation, and reaching a decision unsupported by evidence. She also submits that the clear engagement of the Claimant’s Article 8 rights reinforces the Defendant’s duty to be open and fair in its decision making process and to justify its decision to interfere with those rights.

Miss Laing’s response is that the Claimant is in fact asking the Court to review conflicting strands in the evidence and to substitute its own view for that of the Defendant which a reviewing Court should not do. She submits that while there might be procedural issues in relation to the decisions in July and August, after the meeting on 6 October the reality is that the Defendant has fully considered the views of the Claimant’s litigation friend and has concluded that a nursing care regime is now needed. Given the consultation of the Claimant’s litigation friend by the Defendant, the fact that her wishes have not, in the result been met does not mean that those wishes have not been taken into account. Miss Laing, while accepting that the Claimant’s Article 8 rights are engaged, submits that if the decision is otherwise lawful, Article 8 adds nothing to the debate. This is because, it is both in accordance with law and necessary in a democratic society since the Defendant’s position has been adopted to safeguard the Claimant’s physical and psychological integrity. I accept Miss Laing’s submission on Article 8 and turn to the individual grounds upon which the decision is challenged.

Miss Richards submits that the process itself was defective because the Defendant did not comply with the requirement in the Policy Guidance (summarised in paragraph [13] of this judgment) that carers should be involved throughout the assessment and care management process. She invokes R v Islington LBC, ex parte Rixon (1996) 1 CCLR 119 for the proposition that a local authority exercising social services functions is obliged to comply with guidance issued under Section 7 of the Local Authority Social Services Act 1976 and are required to take into account other guidance such as the Department of Health’s practice guide on case management and assessment.

Miss Richards submits that in this case the Claimant and her family were not allowed to participate in the meeting with the Continuing Care Panel. The Defendant did not share with them its views about the Claimant’s needs. No written decision or reasons from the Panel were provided. The Claimant and her family were not informed that advice was being sought from Dr Cottee nor provided with his views and given the opportunity to comment on them prior to any decision being taken. Dr Cottee did not examine the Claimant. There was, prior to the Defendant’s decision, no discussion with the family about the Claimant’s nursing care needs. The Defendant did not, moreover, respond to points made on behalf of the Claimant. Miss Richards submits that these defects were not cured by what occurred at the meeting on 6 October because that did not result in any review by the Defendant of its decision or any consideration of the points advanced then and previously by the Claimant’s litigation friend.

She also submits that the outcome of the decision making process appears to have been pre-determined from the outset and the Defendant has been unwilling or unable at key stages to give a clear explanation of its position. She relies on the Defendant appearing to have formed the view on or about 12 June that the Claimant should be in a nursing home although neither a Community Care Assessment nor any involvement of the Claimant’s family had occurred. The reference to the Panel was in terms which made it clear that the Defendant’s concern was the provision of additional funding which would have been required at that stage to enable a return to the home. The Defendant did not identify the nursing care needs it considered the Claimant had or why they would have to be met in a nursing home. The Defendant maintained its position after its own Community Care Assessment concluded that the Claimant had improved and could be dealt with in residential care accommodation. The only reason given to the Claimant’s solicitors as to why her needs could not be met at the residential home was that she needed “constant supervision”. There was no reference to particular nursing needs or to medication, incontinence or cognitive impairment. Finally, Miss Richards submits that writing to Dr Cottee asking him to confirm the original Panel was accurate does not suggest that the Defendant was reviewing its decision in the light of the Community Care Assessment in an open-minded fashion.

Miss Laing submits that by 6 October the Claimant’s litigation friend was fully aware of the factors about which the Defendant is concerned and had a full opportunity to comment on those. As to the meeting of 6 October, Mr Kelly states that he explained the Defendant’s position clearly to the Claimant’s litigation friend at the meeting in the light of both the points she had made and Dr Cottee’s opinion. Since Dr Cottee’s conclusion was unchanged Miss Laing submits there was no need for an elaborate reconsideration by the Defendant.

Miss Laing also submits that Mr Kelly’s evidence shows that there has been no pre-determination in this case. The reason the Defendant concluded the Claimant needs to be cared for in an environment where nursing care is available was Dr Cottee’s view that her cognitive impairment and the variability of her condition means that she should have access to a nurse on a daily basis and may need access to a nurse at any time.

The policy referred to is that in the agreement entitled “NHS and Local Authority responsibilities for meeting Community Care Needs”, from which extracts are set out in paragraphs [13-16] of this judgment. In support of her argument that the Defendant failed to apply this, Miss Richards relies on: the Defendant’s refusal to allow the Claimant’s litigation friend to attend or make representations to the Continuing Care Panel or to share the reason for the Panel’s conclusions with her; a failure to take account of or respond to the issues raised in the submission by the Claimant’s litigation friend and her sister to the Panel; and a failure to provide copies of all relevant reports and documents to the Claimant. In particular she submits that the failure to take account of the Claimant’s wishes and those of her family together with the other matters meant that the objective in the agreement of making decisions “as far as possible in full partnership with the people concerned, their carers and relatives where appropriate” was violated. She also relies on the fact that the Panel made its recommendations on 8 July without a full Community Care Needs Assessment and did not inform the parties in writing of the decision as violating paragraph 2.4 of the agreement (see paragraph [24] of this judgment). The Defendant accepts that it did not at that time minute and record decisions in the way that is envisaged in the agreement.

Miss Laing submits that the Defendant has as far as possible made its decision in full partnership with the Claimant’s litigation friend and thus in compliance with the policy in the agreement. The meeting on 6 October gave Claimant’s litigation friend a full opportunity to discuss all her concerns with Dr Cottee and Mr Kelly. It was because of Miss Forster’s Community Care Assessment that the matter was referred to Dr Cottee in the first place. Although the Panel’s decision was made without a current Community Care Assessment, and Dr Cottee had not been provided with one at the time he first considered the matter in August, he was given a copy before the meeting of 6 October.

Miss Richards submits that the decision making process involved three stages: (a) assessment of need under Section 47, (b) determination of the level of need, and (c) determination of how to meet the need. In the present case it is the second and third which are disputed. In relation to the second stage, Miss Richards argues that, on the Defendant’s guidelines, the findings as to the Claimant’s needs match most readily the criteria (set out at paragraphs [19-22] of this judgment) within Level 3 rather than within Level 2. This is because in terms of mobility the majority of the Claimant’s transfers can be managed with the assistance of one person and she does not have mobility needs requiring the skilled assistance of more than one person for the majority of transfers. She is somebody who is “occasionally incontinent or whose incontinence (single or double) is manageable using incontinence aids” rather than somebody with “single or double incontinence which is controlled, managed by the use of drugs, toileting regimes, catheterisation or incontinence pads….”. She also submits that in relation to cognitive impairment the Claimant is plainly within Level 3 having “a degree of cognitive impairment but does not need psychiatric nursing care or continuous individual supervision arising from extreme behavioural disturbance”.

Miss Richards concedes that there are overlaps between the levels but submits that even if the Defendant was entitled to conclude that the Claimant fell within Level 2, it fell into error at the third stage. This is because it proceeded on the assumption that she had then to be provided with care in a nursing home and could not be cared for in a residential care home. Its own policy (referred to earlier in this judgment) makes it clear that a person within Level 2 may be cared for in a nursing home, in a care home, or in his or her own home. She submits that the Defendant has failed to consider whether the Claimant should be cared for in a residential care home with her nursing needs being made by the provision of NHS services, for instance by the Community Nursing Service and her GP. The Defendant’s decision as to the setting in which the care should be provided was flawed because the Defendant assumed that decision automatically followed from the Panel’s banding decision.

Miss Laing does not accept that the criteria were wrongly applied or that there was a rigid adherence to a wrong view of the criteria and of the law. She relies on the quality of need identified by the consultant geriatrician at the hospital, Dr Cottee, and in particular the need, in view of the fluctuating nature of the Claimant’s condition, for to her have access to a trained nurse at any time. It was this that led Mr Kelly to conclude that she must be cared for in a nursing home. In his second witness statement Mr Kelly states that he does not take the view that just because she has been assessed as Level 2 or as needing nursing care that automatically means she must be cared for in a nursing home.

Miss Richards submits that Dr Cottee’s judgment as to the Level 2 nursing care needs upon which the Defendant relies is based on three factors: incontinence, cognitive impairment and medication. In relation to the first, the claimant’s condition is no different from her condition at the home prior to her recent admission to hospital. The nursing report states that she usually knows when she wants to go to the toilet and asks for assistance. Assisting an elderly person with impaired mobilities is a regular feature of care in residential care homes. Secondly, her cognitive impairment has not altered markedly from her pre-hospitalisation condition. It has long been recognised that she has good and bad days and needs a familiar environment with carers who know her well and can recognise signs of deterioration or ill health. Similarly, there have been no changes in the management of her medication regime since her hospitalisation. The decision is irrational because there has been no material deterioration in the Claimant’s condition since the Consent Order in July 2000.

Miss Laing submits that Dr Cottee’s conclusions were not unreasoned or unreasonable. They were set out in his letter of 12 August, explained at the meeting of 6 October and explained again in his report of 10 October. Dr Cottee is a consultant geriatrician at the Chelsea and Westminster Hospital and formed his views as to the application of the local banding criteria on the basis of the reports about the Claimant’s physical and cognitive condition. The Defendant’s position is that in view of the Claimant’s increasing age her care needs have increased incrementally. Mr Kelly states in his recent witness statement that this has been masked to some extent by the high level of personal care she has been getting at the residential home.

Miss Richards submits the Defendant has not taken account of the wishes of the Claimant and her family, the Community Care Assessments, the fact that she had previously been discharged back to the home in a frailer state and with greater care needs but recovered, the absence of any material deterioration in her condition, the Consent Order, the impact on her of moving her to a strange environment, the availability of directly provided NHS services including GP and Community Nursing Service, the available level of care at the home, the likely available level of care in a nursing home and the priorities in the Department of Health Guidance.

On this, Miss Laing submits that not all the considerations have a basis in fact and that those that are material have been taken into account. Miss Forster’s assessment, the Consent Order and the wishes of the family have been taken into account but, she submits those wishes cannot override the Defendant’s view informed by Dr Cottee’s opinion, of what the Claimant requires to be safe and properly cared for. In this case the choice is between residential care and nursing care and the Defendant’s reasons for deciding on the latter are consistent with the order of priority in the policy of ensuring that provision “as far as possible preserves or restores normal living”.

Miss Richards submits that the evidence suggests that the Defendant has blindly adhered to the recommendations of the Panel on 8 July and the views of Dr Cottee in his letter of 12 August, at the meeting of 6 October and in his letter of 10 October. This was despite the fact that Dr Cottee regarded his role as being limited to an assessment on the clinical information against the criteria with no consideration to the wider context.

Miss Laing did not specifically address this as such in either her written or her oral submissions. However, in paragraph 8 of her skeleton argument she states that in relation to the provision of nursing care, in view of the provisions of section 26(1C) of the 1948 Act as amended and of section 49 of the 2001 Act, issues about nursing are no longer the province of the local authority but of the Primary Health Trust or Health Authority. In paragraph 11 she states that whether nursing care can only be provided in a setting which is registered to provide nursing care depends on the nature and intensity of the assessed need. She submits that, given Dr Cottee’s views, the Defendant was entitled to conclude that care should be delivered in a registered nursing home. She goes as far as to submit that, on the facts, a decision that care should be delivered in such a setting was inevitable.

Finally, Miss Richards submits that the evidence of all those who have actually assessed or cared for or know the Claimant points overwhelmingly to the conclusion that she can and should stay at the care home. The Defendant has not taken account of the Community Care Assessment by Ann Forster, and the recent reports documenting her progress and condition since her return home as well as the views of Sister Ashworth on her capabilities immediately prior to discharge.

As far as the evidence of recent developments is concerned, it is submitted on behalf of the Defendant that this does not alter the position. I have set out the Defendant’s view, expressed in Mr Kelly’s second witness statement, that the position has not changed in the light of the Claimant’s return to the home and the information on her condition since then. Dr Cottee’s view has not changed as a result of Dr Powell’s report. Moreover, Dr Powell and the Claimant’s litigation friend acknowledge that the level of care the Claimant is given at the home is at a very high level, a long way above normal for a residential setting. Miss Laing relies on the paradox identified by Dr Powell in his report (see paragraph 47 of this judgment) and Mr Kelly’s recent statement (see paragraph 49 of this judgment) to suggest that the Claimant’s level of need may have been masked by the level of care she has been receiving at the home.

Prior to the meeting on 6 October there were undoubtedly procedural flaws with the approach to assessing what care the Claimant would need after her discharge from hospital. The requirements of paragraphs 2.3 and 2.4 of the agreement between the Defendant and the South West London Strategic Health Authority, “NHS and Local Authority Responsibilities for meeting Continuing Care Needs”, were not complied with. The Panel did not have a full community care needs assessment when it met on 8 July 2003. Miss Forster’s report was indeed not undertaken until after the Panel’s decision and the complaint made on behalf of the claimant. Neither those representing the Claimant nor the court have seen a minute of the panel’s decision outlining its rationale as the agreement requires. The Claimant’s litigation friend was not informed of the decision in writing, as is also required by the agreement, although she was informed of the substance of the decision.

I do not however, accept the submission that at that stage paragraph 3.16 of the statutory guidance had not been followed. The Claimant’s litigation friend attended the ward meeting on 12 June; her views were in the family submission before the Panel; and she met Mr Kelly on 29 July. I do not consider that the Guidance entitled her to attend the Panel meeting. By the middle of July the Claimant’s solicitors were involved and the Defendant informed them on 1 August that they were arranging a further Nursing Care Needs Assessment. They were not, however, informed of the terms of the reference to Dr Cottee and when he was initially asked to review the Panel’s recommendations he was not informed of Miss Forster’s community care needs assessment and does not appear to have had the family’s views before him. The reference to Dr Cottee, moreover, asked him to “confirm to us” that the decision of the Panel was still accurate and he did this within 24 hours of the reference to him. Accordingly, the reference to him did not cure the flaws and indeed there appears to have been less input from the family before him than there had been at the Panel. For these reasons, I have concluded that at the time the Claimant’s litigation friend launched these proceedings there were at least arguable grounds for challenging the decision and thus for permission to be granted.

The question is whether things changed as a result of the meeting of 6 October and, if so, how. Is it correct, as is submitted on behalf of the Defendant, to see that meeting as one at which the views of the Claimant’s representatives were fully and fairly considered so that the Defendant’s conclusion after it that the Claimant’s needs required care in a nursing home setting was one it was entitled to reach and which is not impugnable on public law grounds? Miss Richards submits that this is not correct and that at the meeting there was no review by the Defendant of its decision and no consideration of the points advanced then and previously by the Claimant’s litigation friend. But the focus of the Claimant’s challenge to the decision in the light of that meeting concerned the decision to place her needs in band 2 and the consequences of it; i.e. whether the Defendant assumed that the banding decision automatically meant that the care should be delivered in a nursing home setting.

Was the Defendant only going through the motions so that the meeting was in effect a sham? Prior to it Dr Cottee was sent up to date nursing reports and Miss Forster’s community care needs assessment. At the meeting the points made in Dr Cottee’s report of 12 August were taken up by the Claimant’s litigation friend. They discussed incontinence, the drug regime and which required the supervision of nurses, the extent of cognitive impairment and deterioration, and the prognosis. I have concluded that the meeting of 6 October was not a sham. The recent nursing reports and Miss Forster’s assessment were considered by Dr Cottee. The Claimant’s care needs and her litigation friend’s concerns about the banding decision and the method of assessment and the fact that she did not consider there had been a deterioration were discussed openly. The result was, however, that Dr Cottee’s view that the claimant needs nursing care was reinforced by what she said to him. The Defendant’s conclusion expressed by Mr Kelly at the meeting was that this nursing care must be provided in a nursing home.

The first and second of the individual grounds of the Claimant’s challenge, “defective process” and “failure to apply own policy”, primarily apply to the period before the meeting on 6 October. The Claimant’s litigation friend and her representatives participated fully at the meeting and the Defendant and Dr Cottee were fully aware of Miss Forster’s assessment. It was, indeed, the reason the issue was referred to Dr Cottee. In so far as these grounds are advanced with respect to the meeting I do not accept they have been made out.

It is thus necessary to turn to the submissions on the decision on banding and the consequences of that decision, which form grounds 3, 4 and 6 of the Claimant’s challenge. First, was Dr Cottee’s decision as to the appropriate banding vitiated on public law grounds? He is a consultant geriatrician with much experience in continuing care and the application of the local criteria and he considered a number of clinical reports completed in June and July, in August, and at the end of September. He was concerned that the criteria should be applied consistently within the area. Dr Powell’s different conclusion is based on a difference as to the severity of the Claimant’s impairments, a difference of degree rather than of kind. Given the overlapping nature of the criteria, it is not possible to say that Dr Cottee was not entitled to come to the conclusion that the Claimant’s needs were band 2 or that his decision that they did was Wednesbury unreasonable or irrational. In the absence of unreasonableness or irrationality the Defendant is entitled to rely on Dr Cottee’s views on clinical matters.

The statutory structure since the amendments to the 1948 Act made by the Care Standards Act 2000 and section 49 of the Health and Social Care Act 2001 provides that decisions about nursing care must be made with the consent of Primary Care Trusts or Health Authorities (see section 26(1C) of the 1948 Act). Given this, quite apart from an entitlement to rely on Dr Cottee’s expertise on clinical matters, the Defendant had little choice but to accept his decision on behalf of the National Health Service about the need for nursing care and the banding. Others, including Dr Powell, Sister Ashcroft and the BUPA Nurses, take the view that the Claimant does not need nursing care. The task of this court is not, however, to resolve the different views of the various professionals who have considered the Claimant’s needs. Notwithstanding the differences of view as to what care the Claimant needs that I have set out earlier in this judgment, the Defendant’s position on this is not in these circumstances flawed on public law grounds in the exercise of the Court’s supervisory jurisdiction.

What of the submission that, even if the Claimant has been correctly placed within band 2, the Defendant has failed to consider whether she should be cared for in a residential care home with her nursing needs being made by the provision of NHS services, for instance by the Community Nursing Service and her GP? Miss Richards submitted that the Defendant’s decision as to the setting in which the care should be provided was flawed because it assumed that decision automatically followed from the Panel’s and Dr Cottee’s banding decision.

This aspect of the case has caused me most difficulty. Mr Kelly’s statement at the meeting on 6 October stated the Claimant’s assessed care needs were for nursing care and that the current assessment of care required her to be in a nursing environment may appear to treat a requirement that the Claimant be in a nursing home as following from the assessment that her assessed care needs were for nursing care. Mr Kelly’s evidence on this is summarised in paragraph [43] of this judgment and his assessment of the impact of the evidence concerning the Claimant since her return to the home is referred to in paragraph [50]. The Defendant’s position is not that a need for nursing care automatically means providing it in a nursing home. It is that Dr Cottee’s opinion, first stated on 12^th August and maintained at the meeting on 6 October and in his report of 10 October, that the fluctuating nature of the Claimant’s condition means she should be in an environment in which there is instant access to a trained nurse should the need arise means that a nursing home placement is needed. I have stated that, with regard to nursing needs and clinical matters the Defendant is entitled to rely on Dr Cottee’s views unless they are Wednesbury unreasonable. I have concluded that, given Dr Cottee’s assessment of the clinical position, the Defendant’s decision as to the setting in which the care is to be provided is also not in the circumstances of the present case flawed on public law grounds.

I do not, moreover, believe, considering the position immediately after the meeting on 6 October in the light of the reports sent to Dr Cottee before the meeting of 6 October, his consideration of them, and what transpired at that meeting, that the Defendant has in failed to take account of relevant considerations. I accept Miss Laing’s submission that those that are material have been taken into account. They are: Miss Forster’s assessment, the Consent Order, the wishes of the family, and the impact of moving the claimant to a new environment. Since here the choice is between residential care and nursing care and the Defendant’s reasons for deciding on the latter are consistent with the order of priority in the policy of ensuring that provision “as far as possible preserves or restores normal living”.

Finally, for the reasons given in paragraphs [78-81] of this judgment I do not consider that the evidence of recent developments alters the position.

Accordingly, while permission has been granted, the application is dismissed.