Davey v Oxfordshire CC: The tactics of austerity

Anyone with an interest in independent living must read the (depressing) judgment in Davey v Oxfordshire CC, handed down yesterday.  It touches upon such important issues as  the domestic legal status of Article 19 CRPD, the meaning(s) of independence, and how effectively independent living is realised by the Care Act 2014.

In (very) brief, Luke Davey is a disabled adult, who had been living in his own home with (more or less) 24 hour support from a team of personal assistants who had supported him for 18 years.  They were, to Davey, his ‘community’, his ‘family’ (some of them literally, as he employed his sister in law).  On Davey’s own assessment, his independence was central to his wellbeing, and this in turn relied upon his being supported by this team of PAs.  His package of care had been partially funded by the Independent Living Fund, which has now closed, and the local authority were responsible for funding all of his care.

The local authority assessed his needs, and concluded that his eligible needs could be met for substantially less.  A reduction in his ‘personal budget’ from £1651 to £950.  This was based on OCC’s contention that he could meet his assessed eligible needs for less by reducing the number of hours that he was supported, so that he spent 6 hours alone each day, and also by reducing the pay for his PA’s.  They assessed Davey as having an ‘eligible need’ to enhance his ‘independence’ by spending more time alone.  Davey, meanwhile, experienced anxiety when on his own, and although he was spending 2 hours a week alone did not want to increase this.  He agreed that ‘independence’ was essential for him, but for him, independence was about exercising control over his life, not about not being supported.  This is a pretty central idea within the disabled people’s movement and the concept of independence under Article 19.  He issued JR proceedings.

It’s a long judgment and I don’t have time to recount it all in detail.  However, some key elements of it include a discussion of the status of the CRPD and in particular Article 19 for the construction of the Care Act and the wellbeing principle.  As readers may know, disability rights campaigners in the UK fought hard for the concept of ‘independent living’ to be included in the Care Act, but this was rejected both by the Law Commission and the Government (neither of whom appeared to fully understand the concept).  However, the government then decided in the statutory guidance that actually the ‘wellbeing principle’ which is the overarching principle to be considered when complying with duties under the Care Act, was in fact all about independent living:

1.18 Although not mentioned specifically in the way that wellbeing is defined, the concept of ‘independent living’ is a core part of the wellbeing principle. Section 1 of the Care Act includes matters such as individual’s control of their day-to-day life, suitability of living accommodation, contribution to society – and crucially, requires local authorities to consider each person’s views, wishes, feelings and beliefs.

1.19 The wellbeing principle is intended to cover the key components of independent living, as expressed in the UN Convention on the Rights of People with Disabilities (in particular, Article 19 of the Convention). Supporting people to live as independently as possible, for as long as possible, is a guiding principle of the Care Act. The language used in the Act is intended to be clearer, and focus on the outcomes that truly matter to people, rather than using the relatively abstract term ‘independent living’.

The court was asked to consider whether Article 19 CRPD was an aid to interpretation of the Care Act.  The EHRC, intervening, and Davey, contended that it was more than a mere aid to construction, since the Government claimed that the Care Act was in fact all about independent living.  OCC contended that it couldn’t be the case that the government intended social workers to have regard to the CRPD when applying the statutory guidance (on which point, it’s worth remembering that actually the Convention that the Government has ratified says that social workers should have been trained on the CRPD, Article 4(1)(i) – how many social workers or other professionals reading this have had training on the CRPD?).  Mr Justice Morris noted that Article 19 is only in the guidance not the statute, but agreed that it’s an important aid to interpretation where there is ambiguity because it’s a piece of legislation adopted after the CRPD was ratified and plainly dealing with the subject matter of Article 19.  However, he commented that the Convention does not mean that ‘service user can have the final say on his own needs and personal budget or dislodge the principle that, under the Act, the decisions are ultimately to be taken by the local authority’ (para 49).  In any case, Mr Justice Morris concluded, ‘In the present case, no specific ambiguity in the Act has been identified, in respect of which Article 19 might serve as an interpretive tool’ (para 48). So the judgment is helpful in the abstract, for confirming that even local authorities may need to have regard to Article 19 CRPD when interpreting their duties under the Care Act, but unfortunately this was not especially helpful to Mr Davey.

For a long time, the disabled people’s movement have contested the idea that professionals know better than disabled people what their needs are and how they should be met (see, for example, Illich in Disabling Professions).  The concept of ‘self-assessment’ was central to the concept of personal budgets, which are (at least in name) built into the Care Act.  But the Care Act doesn’t grant the power to disabled people to self-assess; the assessment duty – as the judge emphasised – still lies with the local authority, albeit that the wellbeing principle means they must begin ‘with the assumption that the individual is best-placed to judge the individual’s well-being’.  Davey contended that his needs for independence and wellbeing required the maintenance of his existing team of PA’s to provide 24 hour care; the council contended his assessed needs for independence included spending time alone.  This is Morris J’s view on this divergence of opinion:

…the relevant need to which spending more time alone is addressed is the need to “develop independence and reduce anxiety”.  Spending more time alone is the means of achieving that. The clear view of Ms Last and Ms Lovelock is that the Claimant has such a need and this will be developed by spending time without his carers present.  Thirdly, it is the social worker’s task to assess needs objectively.  Fourthly, prior to the litigation, the Claimant had indicated that he liked to spend a certain amount of time alone and had wanted to develop his independence.  Fifthly, in her witness statement, Ms Lovelock accepted that the Claimant does experience anxiety when left alone, but that she assessed that the need, and the way to reduce that anxiety, was to develop greater independence rather than a need never to be left alone.  That was a social worker’s assessment which could not be regarded as Wednesbury unreasonable and was a matter for her professional judgment.  The social workers had given detailed reasons for their professional judgment. (para 120)

It’s very convenient for a council looking to reduce costs that actually, Mr Davey eligible ‘needs’ are to spend more time alone.  This is a good example of precisely the kind of top-down imposition of a professionals’ view of a disabled person’s needs that the movement has been railing against for decades, and it’s depressing that this has been so firmly established in the first real test of how far the Care Act gives effect to self-directed support. The judge confirmed that whilst the wellbeing principle places a strong emphasis on having regard to the person’s own wishes, ‘the Claimant’s wishes are no more than that and are not “needs”; those “wishes”, whilst of significant importance, are not paramount’ (para 121) and ‘“developing independence” was a legitimate “need”’ (para 122).

There’s a lot more to this judgement about the impact of spending time alone on mental health, and the council’s argument that if he wanted to he could spend the money on a live in carer (the judge rejected this, since the council had itself rejected this during assessment – it strikes me that in this submission the council wants it both ways, both that it has the final say through professional judgment, then it wants to rely on the service user’s choice when that judgement leads to awkward consequences of having to assess the impact of that judgement on Davey).

There are a few key points I wanted to bring home in this blog post. Firstly, the judgment actually is quite positive on the status of the CRPD. Yet this doesn’t help Davey because the judge fails to see that there is an ambiguity in the meaning of independence – one which the CRPD does in fact help to address.  Independence, for the disabled people’s movement and under the CRPD, is not about spending time without support, it is about having the same choice and control over one’s life and where and how one lives as non-disabled people.  This is the ambiguity the CRPD should have helped to resolve, but it wasn’t deployed in this way.

Secondly, the judgement makes clear (as it should have been already when reading the Care Act itself) that for all its talk of putting the person at the centre of the process, the final say on defining needs lies with the council.  In a way, of course it does, because public law will always tether resource allocation to the public body, not those relying upon the resources.  But the effect of this is to grant tremendous power to the local authority when it comes to the setting of the personal budget, and although it is technically true that this could be spent in other ways (subject, again, to the professional judgement of those working for the council), the reality is that the limited funds mean that alternative options are limited.

Thirdly, the possibility that Davey’s care team will fall apart after 18 years is dismissed as little more than an irrelevance: care here is not constructed as a relationship, a vital relationship, between individuals, but a fungible commodity that can be replaced with no real impact on the service user.

And finally, the case shows that the closure of the ILF is having a real and detrimental impact on disabled people’s lives.  We should not underestimate the significance of what it means that a care plan that has been held in place with the same staff for 18 years (that’s HUGE in an industry with such massive staff turnover) is now at risk.  It says something huge about the wider political landscape, that for 18 years disabled people like Luke Davey were able to rely upon the ILF to build lives, lives that really did afford independence in the meaning of the CRPD, and now those structures that once seemed so stable, are fragmenting.  This judgment is a lesson in the legal and rhetorical tactics that paper over this fragmentation and legitimise it, and a portrait of the shifting tectonic plates of the political landscape as disabled people’s lives fall through the cracks.