High Court of Northern Ireland rules that a Health and Social Care Trust acted lawfully in reducing two claimants’ social care provision in response to pressures of Covid-19 pandemic

J and  L's (acting by their mother) application and in the matter of a decision by A Health and Social Care Trust [2021] NIQB 23

In a recent judgment, the Northern Ireland High Court has ruled that a Health and Care Trust acted lawfully when deciding to reduce the assessed level of social care it provided to two claimants in response to the Covid-19 pandemic.

In J and  L's (acting by their mother) application and in the matter of a decision by A Health and Social Care Trust [2021] NIQB 23 (26 February 2021), the applicants (J and L) were brothers aged 27 and 24 who were profoundly disabled and lacking in capacity. Their care needs had been assessed on 23 April 2018 and were then reviewed and confirmed on 17 July 2019. These included -

• seven hours care at a care facility (the ML facility), including transport to and from their home;
• domiciliary care for three to four hours on most Fridays; and
• overnight respite care to support their mother in her caring role.

As a result of the Covid-19 outbreak, on 23 March 2020 the Health and Social Care Trust (the Trust) responsible for meeting J and L's care needs ceased providing the previously assessed level of care. It subsequently provided care on a fluctuating and increasing basis with some but not all aspects of the previously assessed provision returning to pre-pandemic levels. At no stage did the Trust undertake a formal review of J and L's care needs. However, it regularly reviewed service provision through the pandemic (on almost a monthly basis from May to December 2020).

The applicants (by their mother) claimed judicial review, on the grounds that the Trust acted unlawfully by taking account of resource issues arising from restrictions imposed by the Covid-19 pandemic instead of first reassessing J and L's needs.

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In the High Court, Mr Justice Colton identifies the key legal provision at issue as section 2 of the Chronically Sick and Disabled Persons (Northern Ireland) Act 1978 - that imposes a duty on the Department for Health (a duty placed on the Trust in this case) to meet the needs of a disabled person - and highlights that the provision is equivalent to that applying in England and Wales and has been subject to considerable judicial analysis, most notably in Northern Ireland by McCloskey J (as he was then) in LW (Acting by her mother JB) Application [2010] NIQB 62.

In particular, Colton J refers to the ‘three separate tasks’ - identified by the Supreme Court in R(KM) v Cambridgeshire County Council [2012] UKSC 23 and R(McDonald) v Kensington and Chelsea RLBC [2011] UKSC 33 - that a local authority must undertake when considering how it meets the needs of a disabled person under the statutory duty imposed by the Care Act that applies to that authority -

(i) What are the needs of the disabled person? - described by McCloskey J as the 'diagnosis' stage.

(ii) Whether in order to meet those needs it is necessary for the local authority to make arrangements to provide any services? - described by McCloskey J as the 'prescription' stage.

(iii) If so, what is the nature and extent of those services? - described by McCloskey J as the 'provision' stage.”

Colton J highlights that the key principle to be drawn from the case law authorities on the three-task process is that -

‘… financial or resource considerations can only lawfully be taken into account in the earlier stages of the process but not at the third stage. If one reaches the third stage a duty, enforceable at the suit of the chronically sick or disabled person concerned crystallises.’

Considering whether the actions of the Trust could be assessed as driven by financial or resource considerations at the third stage of the process, Colton J concludes that they were not, for reasons including that -

• the service reviews carried out by the Trust as a result of the effects of the Covid-19 pandemic can properly be interpreted as applying to stage (ii) of the three stages.
• through its efforts, the Trust carried out their statutory obligations to assess and meet the needs of J and L under section 2 of the 1978 Act and was entitled to take into consideration when assessing those needs the consequences of the Covid-19 pandemic on its resourcing of care services; and
• it was impossible to safely continue provision of the arrangements assessed as needed prior to the Covid-19 pandemic - for example, there was no reasonble argument for challenging the Trust's decision to close down the ML care facility used by J and L when the Covid-19 pandemic struck in order for it to be opened safely at a later date.

As a result of these conclusions, Colton J refuses the judicial review application, holding that -

‘… there has been no breach of the respondent’s duty to J and L under section 2 of the Chronically Sick and Disabled Persons (Northern Ireland) Act 1978. In respect of the needs which came within the scope of section 2 I conclude that the arrangements necessary to meet those needs were lawfully reassessed. That reassessment was necessary because of the difficulties that arose as a result of the restrictions imposed to deal with the Covid-19 pandemic. The resultant change in circumstances was a relevant factor to be considered by the respondent in complying with its section 2 obligations to J and L. On the evidence in this case the reassessments and reviews were fairly and lawfully applied to J and L.’ (paragraph 98)

Colton J however closes by stressing that these conclusions do not give a ‘blank cheque’ to the Trust, which remains under an ongoing duty to make the necessary arrangements to meet J and L's needs.