Severely disabled man loses appeal over council’s 42% reduction in cuts to care funding

A severely disabled man has lost his battle in the Court of Appeal over cuts by a local authority to his care funding.

Luke Davey, 41, was seeking to overturn Oxfordshire County Council’s decision to reduce by 42% his weekly personal budget, which provided a 24-hour care package.

Three appeal judges ruled the council had not acted unlawfully.

The judges were told at a recent one-day hearing that Mr Davey (pictured), who has quadriplegic cerebral palsy, and others like him have been seriously adversely affected by Government changes to the care funding system.

Critics of the Government say Mr Davey’s case illustrates how disabled people are suffering because ministers axed the independent living fund (ILF) in 2015 but failed to ring-fence sufficient money for the disabled under the new Care Act 2014, which makes cash-strapped local authorities responsible for funding all care needs.

Mr Davey, who is registered blind, attempted to overturn a ruling by High Court judge Mr Justice Morris which went against him.

Lord Justice McFarlane, sitting with Lord Justice Bean and Lady Justice Thirlwall, rejected the bid, saying: “Like (Mr Justice Morris), I have great respect for the manner in which the claimant, his family and his team of carers cope with his difficult situation.

“But that is not the same thing as saying that the council’s actions have been unlawful.”

Mr Davey and his lawyers were given until September 18 to consider whether they wish to apply to the Supreme Court for permission to make a further appeal.

The Davey case is believed to be the first to analyse key issues on care planning under the Care Act.

Protesters, many in wheelchairs, gathered outside the law courts when a one-day hearing was held on August 17.

Inclusion London, which supports deaf and disabled people’s organisations across the capital, staged the protest before the hearing.

The group’s chief executive Tracey Lazard said money and local authority assistance had previously enabled thousands of claimants to live independently.

But Government changes mean local councils are now having to foot the bill while still cutting overall costs in the Government’s austerity drive.

Ms Lazard said after the court dismissed Mr Davey’s appeal on Friday: “We are deeply disappointed and concerned.”

A lawyer for the firm acting on behalf of Mr Davey and his family said there were fears that, because his legal challenge failed, Mr Davey’s team of carers might be forced to quit because of wage cuts.

Yogi Amin, from Irwin Mitchell, said: “Luke and his family are disappointed that the council has cut his care package and is insisting that his long-standing carers should have their wages reduced to minimum wage which he fears will force them to leave from the job they were doing to support him.

“They are now very concerned about the possible detrimental impact on his future care.

“Luke would like to have the support to meet his independent living needs which arise as a result of his disabilities.”

Jamie Burton, who represented Mr Davey, told the judges his reduced budget was not enough to fund the same team of personal assistants who had cared for him for nearly 20 years, knew him very well and contributed to his sense of wellbeing.

There was a significant risk of him losing his trusted carers and suffering anxiety, argued Mr Burton.

The local authority argued it had been entitled to make the reduction after an assessment of Mr Davey by an experienced social worker concluded that he needed “to be able to spend more time alone to develop his independence and reduce anxiety”.

The local authority decided he could spend 6.5 hours alone each day and he could reduce the amount he paid to his carers.

Mr Burton said he had since agreed to spend four hours alone and negotiated with his team to accept some, but not all, of the proposed reductions in their terms and conditions of employment.

But this still left a shortfall in his budget and his mother, Jasmine, who is aged 76 and has cancer, faced having to fill the gaps in providing for his care, said Mr Burton.

Inclusion London campaigner Svetlana Kotova said: “This is not about disabled people demanding golden cars.

“This is about very basic things.”

A spokesman for Oxfordshire council said: “We will continue to work with Mr Davey and his family to ensure he gets the provision of essential services he needs

“The Court of Appeal has confirmed that the council’s assessment of Mr Davey’s care needs and the allocated amount for his personal budget is appropriate and lawful.

“All local authorities who provide adult social care services against a background of financial constraints in the public sector are having to make difficult decisions.”

Lord Justice Bean described in the appeal court’s lead ruling how the ILF was closed down in June 2015.

Until then, Mr Davey had received adult social care support totalling £1,651 per week, provided in part by the local authority but also including a £730 contribution from the ILF, an NHS contribution and a small means tested contribution from Mr Davey himself.

When the ILF disappeared, Mr Davey’s care and support package was provided wholly by the local authority, with Mr Davey’s small contribution.

Oxfordshire council reduced the overall sum paid to £950 a week from May 1 2016 after assessing that it would be positive for Mr Davey to spend more time alone without a personal assistant, and that he should reduce the amount he paid to his carers.

Rejecting Mr Davey’s appeal, the judge said the High Court had been entitled to find there was insufficient evidence to show that changes in pay and conditions “would” result in the break-up of his existing care team.

The local authority had also not acted unlawfully by saying carers should have their wages reduced to the minimum wage.

One personal assistant, Sue Davey, had expressed the opinion that payment at minimum wage rates was “a poor reward for a person of her quality and experience”.

But statutory guidance made clear that “a personal budget should reflect local market conditions”, said the judge.

The High Court had been entitled to accept evidence about local market conditions in the area of Mr Davey’s home “together with the indication that if those conditions change the council would be bound to revisit the issue”.

Lord Justice Bean also said the High Court was entitled to find Mr Davey’s personal budget would still enable him to take part in a wide range of social activities, including trips to the local town.

The appeal court had been referred to Article 19 of the UN Convention on the Rights of Persons with Disabilities, which recognises the right of all persons with disabilities to “live independently and be included in the community”.

Lord Justice Bean said guidance issued under the Care Act referred to the convention. Although the Act itself did not make any mention of independent living, it was a core part of the “wellbeing principle” in the legislation.

The High Court ruled the convention was an international treaty which created no direct obligations in UK domestic law, and no “specific ambiguity” had been identified in the 2014 Act for which Article 19 might serve “as an interpretive tool”.

Lord Justice Bean said Mr Davey’s legal team had not argued there was any error in the High Court conclusion.

But the Equality and Human Rights Commission (EHRC), who were not parties to the appeal, had intervened and argued that it “goes against the principles of Article 19”.

Rejecting the EHRC’s submissions, Lord Justice Bean said the High Court analysis seemed to him “entirely correct”.

But he added that should not prevent the EHRC argument being advanced “in a future case where it is subject to adversarial argument by the parties.”

_{Copyright (c) Press Association Ltd. 2017, All Rights Reserved. Picture – Luke Davey with his mother Jasime outside court – (c) John Aston / PA Wire.}