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 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
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:
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.
