The Care 2014 and the Concept of Well-being

Introduction

The Care Act 2014 is regarded as one of the most important pieces of social care law for over half a century. It is not a light bedtime read. It runs to over 150 pages and contains more than 120 sections. Section 1 of the act introduces the concept of well-being: “The general duty of a local authority…in the case of an individual, is to promote that individual’s well-being.” But what, exactly, is well-being.

Well-being an Idea Whose Time Has Come

Well-being is, and has been for a while, a concept that is very much a feature of our political landscape. David Cameron explained it in  2006 as there being  “… more to life than money…”. This idea has been around for a while. In the 1970s, it was labelled the Easterlin paradox, after Richard Easterlin who argued that the rich in any particular society may be happier than the poor, but rich societies are not necessarily happier than poor ones. When Cameron was Prime Minister in 2010, the Office for National Statistics was charged, under the government’s well-being initiative, with measuring the nation’s well-being.

Well-being in the Care Act 2014

The Care Act 2014 gives no simple definition of well-being. It does, however, list nine aspects of well-being and a further eight matters to which a local authority must have regard. There is also some statutory guidance that helps interpret what is meant by well-being. Two points to note here are first that the duty placed on a local authority is a general duty. A general duty is considered to be a weaker form of a duty tout court. Second, the general duty is to promote well-being not to achieve well-being.

A key matter to which a local authority must have regard is the assumption that individuals are best placed to judge their well-being. Section 1 (3) (a) reads:

In exercising a function under this Part in the case of an individual, a local authority must have regard to the following matters in particular—

(a)the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being.

It will be interesting to see what effect this has in encouraging a less deferential approach by the courts to social services' expertise. It will also be interesting to see how easy it will be for local authorities to defeat the assumption on financial grounds.

The Act is still relatively new so there is not yet a great deal of case law dealing with it. There has been, however, just a few weeks ago, a case involving the Act that has been considered by the Court of Appeal. The assumption appears not to have been raised, although there was a consideration of some aspects of well-being. 

R (Davey) v Oxfordshire County Council and Others

The facts of R (Davey) v Oxfordshire County Council and Others 2017 appear in the judgment of Bean LJ who delivered the leading judgement:

“Luke Davey (the Claimant) seeks judicial review of the decision of Oxfordshire County Council (the Defendant) made in or around October 2015 to reduce the Claimant's personal budget and to revise his care and support plan pursuant to the Care Act 2014 (the Act). The effect of these decisions was to set the personal budget for the Claimant's care at £950 per week with effect from 1 May 2016, a substantial reduction from his previous budget of £1651 per week. Morris J, in [the High Court], dismissed the claim. Mr Davey appeals to this court. We were told that this is the first case in which the Act has been considered in this court.”

The Court of Appeal upheld the decision of the High Court. Mr Davey put forward a number of points, some of which touched on the general duty of his local authority to promote his well-being.

In the High Court, he had explained that his reduced budget would mean that he would have to spend more time on his own. Spending more time on his own, he argued, posed a risk to his emotional well-being. His local authority, asserted Mr Davey, should have had regard to this risk by virtue of its general duty to promote his well-being. More specifically, section 1 (2) (b) says that

“Well-being”, in relation to an individual, means that individual’s well-being so far as relating to any of the following—

 (b)physical and mental health and emotional well-being;

Morris J dismissed this claim, and concluded that the local authority had not failed to take into account the risk to Mr Davey’s emotional well-being. Detailed reasons for forming this conclusion are to be found in paragraphs 136 -141 of Morris J’s judgement. In the Court of Appeal, the contention that the local authority did not have regard to the risk to Mr Davey’s emotional well-being did not form part of the appeal.

In the High Court, Mr Davey contended that his Personal Assistants (PAs) would now be available for shorter periods and this would curtail the social activities that he could take part in. Social activities were important to his well-being. Morris J concluded that that the local authority had considered the effect on Mr Davey’s social activities of the shorter periods for which his PAs would be available. Therefore, the local authority had not acted inconsistently with section 1 of the Care act 2014. The Court of Appeal upheld the judge’s decision. Bean LJ’s reasoning is in paragraphs 82-84 of the Court of Appeal Judgment.

Mr Davey had a team of PAs working for him. This team had been together for over 17 years. He contended that his reduced personal budget would mean a change for the worse in the terms upon which this team was employed. This could lead to some in the team leaving which could affect Mr Davey’s well-being. The local authority had a duty to have regard to this risk under section 1 (3) (d) of the Care Act 2014, which states that

In exercising a function under this Part in the case of an individual, a local authority must have regard to the following matters in particular—

 (d)the need to ensure that decisions about the individual are made having regard to all the individual’s circumstances (and are not based only on the individual’s age or appearance or any condition of the individual’s or aspect of the individual’s behaviour which might lead others to make unjustified assumptions about the individual’s well-being).

Again, Mr Davey’s argument was dismissed by Morris J who explained that the local authority had had regard to all Mr Davey’s individual circumstances. Once again, the Court of appeal upheld the judge’s decision on this point. The full reasoning of Bean LJ can be found in paragraphs 66-79 of the Court of Appeal’s judgment.

Conclusion

I’m not sure that the case advances our understanding of well-being that far. It would have been good to have seen a discussion of the assumption. If local authorities can routinely defeat the assumption on grounds of cost or that risks to well-being have been considered then the assumption has little or no purpose. 

Garry Costain is the Managing Director of Caremark Thanet, a domiciliary care provider with offices in Margate, Kent. Caremark Thanet provides home care services throughout the Isle of Thanet. Garry can be contacted on 01843 235910 or email garry.costain@caremark.co.uk. You can also visit Caremark Thanet's website at www.caremark.co.uk/thanet.