Killigrew, R (on the application of) v Birmingham City Council [1999] EWHC Admin 611 (29th June, 1999)

JUDGMENT MR JUSTICE HOOPER: For reasons which I shall now give, this application succeeds. 1. This is an application for judicial review of a "Care Plan" prepared by the respondent in respect of the applicant and dated 11th November 1998 ("the New Care Plan"). The condition of the applicant and that of her husband are accurately described on behalf of the applicant in the amended Form 86A in the following way: "Deborah Killigrew was diagnosed as having multiple sclerosis when she was 17 years old. She is now 40. Her condition has gradually worsened with the degenerative nature of multiple sclerosis: she frequently shakes uncontrollably, has been registered blind for the last seven years and has deep vein thrombosis which gives rise to bad circulatory problems; she has a form of epilepsy which results in extended seizures; she is incontinent and physically unable to tolerate a catheter. She cannot undertake any personal task unaided (including, for example, getting into and out of bed, dressing or moving from her chair). Deborah Killigrew's condition has worsened gradually over time and has continued to do so in recent months. This is illustrated, for example, by the fact that, in December 1997 she was able to stand whilst strapped to a standing frame; however, by the end of January 1998, she was unable to weight bear at all. Deborah Killigrew lives with her husband of 20 years, Tony. He has arthritis in his hips; he has a chronic back condition; he has been registered disabled for the last four years; although previously able to move his wife safely, he can now do so only at great risk to both her and himself." 2. The applicant has been in receipt of 'Community Care' support from the respondent for many years. Until the imposition of the New Care Plan, her most recent Care Plan ("the Old Care Plan") was dated 11th December 1997. Pursuant to that plan, as subsequently varied, the applicant receives seven days a week, 12 hours continuous care starting at 8.00am ("12 hours care"). This Care Plan continues in force today following an order by Collins J staying the implementation of the New Care Plan. That plan, prepared by Meg Allot, provides for six hours care provided by qualified carers in the following way: 8.30am to 9.30am - Get up, wash, dress, toilet, two carers. 9.30am to 10.30am - Breakfast, dishes and household tasks, one carer. 12.30pm to 1.00pm - Toilet, two carers. 1.00pm to 2.00pm - Lunch and dishes, one carer. 4.00pm to 4.30pm - Toilet, two carers. 6.00pm to 7.00pm - Tea and dishes, one carer. 7.00pm to 8.00pm - Prepare for bed, toilet, two carers. 3. There is an allowance for one extra hour per day for what is described as emergencies. I was told during the course of argument that if this hour was not actually used in any one day it could be "banked" and used on another day. Subject to that extra hour, the total number of hours during which the applicant will receive care from qualified carers under the New Plan is to be six hours ("six hours care") rather than the 12 hours care in the Old Plan, albeit that more carers are used. The New Plan provided for 20 hours of social activity provided by community services volunteers. 4. It is submitted on behalf of the applicant that the respondent failed to consult properly, and that the reduction in the hours in the New Plan is unlawful and perverse in that, in particular, it fails to identify why 12 hours care was no longer thought to be necessary. The law 5. Section 29 (1) of the National Assistance Act 1948 provides that: "A local authority [may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall] make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons [aged eighteen or over] who are...substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister." 6. Section 2 of the Chronically Sick and Disabled Persons Act 1970 provides that: "Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely - (a) the provision of practical assistance for that person in his home;... (g) the provision of meals for that person whether in his home or elsewhere;... then,...subject...[... to the provisions of section 7(1) of the Local Authority Social Services Act 1970 (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State)] [and to the provisions of section 7A of that Act (which requires local authorities to exercise their social services functions in accordance with directions given by the Secretary of State)], it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29." 7. Section 7(1) of the Local Authority Social Services Act 1970 provides that: "Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State." 8. I have been shown the relevant guidance. It stresses the importance of consultation with the "individual user", carers and other agencies. Once needs have been assessed, "the objectives of any intervention should be agreed in the form of a Care Plan" (paragraph 3.24). In paragraphs 3.47 and 3.48 special provision is made for the contribution of the user's general practitioner to the preparation of the Care Plan: "3.47 It is expected that, as a matter of good practice, GPs will wish to make a full contribution to assessment. It is part of the GP's terms of service to give advice to enable patients to avail themselves of services provided by a local authority. 3.48 Where advice is needed by the local authority in the course of assessment, this should be obtained from the GP orally (eg by telephone) as far as possible. A record should be kept of the advice given. In addition to the information that only the patient's own GP can provide, local authorities may, on occasion, also require a clinical examination or an interpretation of the medical report provided by the GP. Local authorities should, therefore, be aware that GPs have a personal duty to and a relationship with their patients, and may not be best placed to act in addition as an assessor on the authority's behalf. In such circumstances local authorities may wish other practitioners to act in this capacity." 9. Paragraph 3.18 provides: ".....local authorities should publish readily accessible information about their care services... It should include the authority's criteria for determining when services should be provided and the assessment procedures, showing how and where to apply for an assessment and giving information about how to make representations and complaints." 10. The respondent has published "Criteria for the Provision of Home Care". Under the heading "Home Care Assistance can provide all sorts of assistance", the respondent sets out the following: " - assisting someone to get up in the morning or go to bed at night; - preparing and cooking a meal and assisting someone to eat; - collecting a pension or doing a weekly shopping; - acting as a link with doctors, nurses, family and neighbours; - assisting and supporting a person's carer; - assisting someone to keep their home reasonably clean and tidy; - generally helping, encouraging, befriending and supporting- caring in every way." 11. A letter from Mr Herbert Lamming CBE, the Chief Inspector of the Social Services Inspectorate, dated 14th December 1993, states: "The care plans of all users should be subject to regular review. For frail people in the community, frequent reviews and adjustments of their care plans are likely to be needed. Before any changes in services are made for existing users, they should be reassessed. In those cases where assessments have been undertaken, particularly under section 2(1) of the [Chronically Sick and Disabled Persons Act 1980] authorities must satisfy themselves, before any reduction in service provision takes place that the user does not have a continuing need for it. So long as there is a continuing need, a service must be provided although, following review, it is possible that an assessed need might be met in a different way....." In R. v. London Borough of Haringey ex parte Norton , unreported, 31st July 1998, CO/4613/97, Tucker J said that this passage in the letter set out "what to my mind is obvious". 12. Mr Oudkerk did not dispute that the letter accurately describes what the local authority must do when considering a reduction. When asked in argument, he said that the respondent's case was that it had satisfied itself that the applicant did not have a continuing need for the service provision in the Old Care Plan. He also submitted that six hours care with the additional one hour and 20 hours to which I have referred was sufficient. 13. Although the documentation in the case is voluminous, consisting of affidavits, reports interrogatories and original records, the most important documents are those documents which contain reasons for the decision that the applicant did not have a continuing need for the service provision in the Old Care Plan, namely 12 hours care and only needed six hours case. 14. The Old Care Plan was short of reasoning, but in section 4 under "Tasks to be done" was included "Supervision and Appropriate stimulation" (page 32). 15. I read from the applicant's skeleton argument at paragraph 1.9: "On or about 19th January 1998, the respondent undertook a 'manual risk handling assessment' to review the facilities and personnel required safely to move and handle Deborah Killigrew. Among other things, as part of that assessment: (1) Tony Killigrew was advised that lifting his wife could lead him to 'suffer permanent injury that could stop him caring for his wife'; (2) recommendations were made that the Killigrews be rehoused in more suitable accommodation; (3) recommendations were made that - pursuant to the 'manual handling regulations' - Deborah Killigrew should no longer be lifted or moved manually by her professional carers." 16. On 8th April 1998, following a request by the applicant and her husband for a reassessment of the applicant's needs, the respondent wrote a letter to the applicant which included the following: "On the 12th March 1998 you requested that the Social Services Department re-assess the care needs and care package of Debbie Killigrew. At that time, you were requesting that the Department provide carers over a 24 hour period. You drew our attention to a manual handling risk assessment carried out by Mary McKearney, manual handling advisor, North Birmingham Community Health Trust. We also received a letter from you solicitor which repeated the request for a re-assessment. We have now completed our assessment. The Local Authority, Social Services Department, can provide an assessed package of care which we believe would meet both Debbie's care needs as well as the manual handling regulations. However, this would involve a substantial change to the care package that you had previously, and would involve two carers coming on five occasions during the day and evening. The current situation is that you have one carer over a 12 hour period each day. Following our telephone conversation today, I have considered your request that we do not alter your care package until further discussion takes place with you. We will therefore maintain the existing arrangement until that discussion can take place. I shall arrange this as quickly as possible." 17. I return to the applicant's skeleton argument, paragraph 1.12: "Deborah Killigrew's growing concern at the prospect of her care provision being worsened was a factor in her taking an overdose of medication in early May 1998 whilst she was in respite care. This resulted in a period of time in intensive care at the Warwick Hospital." 18. The next event was a meeting on 10th June 1998. By this time new accommodation for the applicant and her husband had been found, into which it was hoped they would move shortly. Included among the many features to help the applicant was a ceiling track hoist from the bedroom to the bathroom. Present at that meeting were Mr and Mrs Killigrew and various other persons associated with the care of the applicant. Meg Allot was not present at this meeting as she had not, by this time, been appointed to conduct the assessment which led to the New Care Plan. Part of the minutes read as follows: "There was a discussion around the current care package for Deborah and how this would be affected by the reassessment of need carried out by Marion Houlston and Annette Hanny (CHCC) to take into account the manual handling requirements ." (Emphasis added) (page 39). As is clear from a passage on the next page of the minutes, it had already been decided that two carers were needed for specific manual handling tasks. Although Mr Oudkerk submitted that I ought not to draw conclusions adverse to the respondent, this passage, it seems clear to me, and as Mr Wolfe submitted, shows that the reassessment of need was being carried out "to take account" of the need for two carers to assist in the lifting process. This view is a view shared by Mr and Mrs Killigrew (see page 15). On 29th July 1998 the respondent notified Mr and Mrs Killigrew that the Old Care Plan was to be immediately withdrawn and replaced with a Revised Care Plan. This Revised Care Plan provided for three and a half hours care a day, five days a week, and some additional care at the weekend. This Care Plan envisaged two carers for the times when lifting was necessary. There was no justification given for reducing from the 12 hours care to three and a half hours. Understandably the applicant challenged the Care Plan. By a letter dated 4th August 1998 her solicitor wrote (page 52): "As you will know Deborah Killigrew has multiple social and personal needs arising as a result of her profound health problems. Mrs Killigrew has had multiple sclerosis since the age of 17. She has been registered blind for the last seven years and additionally suffers from deep vein thrombosis, a form of epilepsy, double incontinence and is now unable to weight bear at all. Mrs Killigrew suffers from sudden uncontrolled jerking movements as a result of the MS. The combination of symptoms from which Mrs Killigrew suffers means that she cannot be left alone at all." 19. The application for permission to apply for judicial review came before Collins J on 24th August 1998. He granted a stay on the implementation of the proposed revision and an adjournment at the respondent's request to allow the respondent to undertake a further assessment of the applicant's needs for community care. During this assessment, carried out by Meg Allot, she was told by Mr Killigrew that (page 103): "Tony provides all care from 8.30pm to 8.30am. This includes lifting Deborah from chair to wheelchair to bed. He assists with emptying catheter bag, or assisting with continence pads. If necessary during the night he gets drinks and food for Deborah. He helps her to move if she is uncomfortable. He will get help in emergencies. He has in the past tried to help the carers with lifting, but feels no longer able to do this. He does assist her in and out of the car." 20. In answer to the question: "Are you experiencing any difficulties that affect your ability to give support and when did these difficulties start?" 21. Mr Killigrew responded: "As Deborah's condition and dependency has worsened over the last couple of years, and as his own physical limitations have increased, Tony is finding caring much more onerous. He can also see that this situation is going to get worse. He and Deborah are rowing a lot. Both feel vulnerable and emotionally are unable to support each other. Tony is frustrated that he cannot help Deborah more." 22. Following the reassessment, a further Care Plan was produced dated 30th October 1998. I read the last two pages of that Care Plan signed by Meg Allot: "Mrs Killigrew has a combination of very debilitating conditions, primarily multiple sclerosis, and practically no sight. She also has epilepsy, which is controlled by drugs. Under the circumstances she is remarkable resilient, sociable, and determined. Her main concerns centre around Mr Killigrew's needs and she too talks of the poor state of their relationship at present. She talks more of his needs than her own and is terrified he will leave her. She encourages the agency carers to provide care for Tony as she feels deeply her own inability to do this. She also speaks of the imbalance in the relationship and becomes very upset when they argue. She also talks of suicide if Mr Killigrew left her. The care needs for which she has a continuing need for services from Health and Social Services Department consist of the following:- Assist with get up; Shower/wash, toilet care, teeth etc; Catheter, bowel, and skin care with the district nurses; Preparation, feeding and clearing of meals; Some housework and laundry; Empty catheter bag; Assistance with personal shopping; Prepare for bed. Some of this care can be provided at the day centre and should be within the remit of the centre to provide personal care while Mrs Killigrew is there. She also has help to light her cigarettes. Assistance with reading instructions etc. Mrs Killigrew has other social and companionship needs which are not the direct responsibility of the Social Services Department which may need to be met in another way. Conclusion and Recommendations Mrs Killigrew undoubtedly has considerable care needs, which fall within the remit of Health and Social Services Department. The move to a purpose built bungalow with adaptations has relieved much of the pressure felt at the previous property. It is apparent from observations and daily recording of the care agency that the current care arrangements are fulfilling functions that are not the direct responsibility or with the remit of Social Services Department, and would certainly not be seen as priority tasks. Very little direct care takes place between 10.30am and 6.00pm, apart from preparation of lunch and emptying catheter bag. This time is largely spent keeping Mrs Killigrew company. The flexibility which has been requested to allow for unpredictable care needs has in fact led the carers to undertake tasks which they were not contracted to do, and are outside the responsibility of the Social Services Department. I am advised by the District Nurses that proper management of catheter and bowel care, which is the responsibility of the nurses themselves, should reduce the incidence of emergencies which have occurred in the past and ensure that Mrs Killigrew is more comfortable. In order to assist and support Mr and Mrs Killigrew to re-establish a balanced quality of life in their home I would like to suggest the following Care Plan as a basis for discussion. I believe this should allow them time alone together as husband and wife, time separately as individuals, and sufficient support where Social Services Department has a clear and defined remit for direct care provision and household tasks. See attached Alternative Care Arrangements." 23. This proposed Care Plan provided for six hours care, but did not provide for help in going to the toilet because at this time the applicant had a catheter fitted. 24. Following the removal of the catheter, that plan was revised and thus the New Care Plan came into existence. The need for the revision is explained at page 116 as being "in the light of changed circumstances". It states: "Mrs Killigrew no longer has a catheter and will either require assistance to use the toilet, or to change continent wear. Her awareness of the need to use the toilet has fluctuated over the past two weeks as has her ability to bear weight. Reports from Helen Ley, Respite Care Home, the District Nurse, the Continence Advisor and Mr and Mrs Killigrew themselves, has varied widely from day to day. It has been agreed therefore, following discussion with the District Nurses, who bear the main responsibility in this area, to agree a Care Plan which takes account of the "worst case scenario", i.e. Mrs Killigrew will actually require help of two people at some point during the day for any of the above reasons." 25. Although the New Plan was then being put forward as a basis for discussion, it was adopted by the respondent. 26. What was needed was a very careful assessment of why, if that was the case, 12 hours care was no longer needed. The importance of the respondent satisfying itself that this was the case is obvious. The applicant and her husband were asking for at least the 12 hours care to continue. Her condition was inevitably and steadily deteriorating. Not continuing the 12 hours care could, it was being said, have serious consequences for the applicant, and was certainly likely to cause deep distress to the applicant (see page 17). The decision to reduce was made at a time when it had been decided that two carers were needed for lifting. It was important that the reduction to six hours care was not driven by the need to have two carers to carry out the task. On the evidence available before me, the reduction could only be justified if there was no continuing need for 12 hours care and not simply because two carers were needed when only one had sufficed earlier. 27. Do we find that careful assessment in the October Care Plan, in particular in pages 110 and 111, which I have already read? Making all allowances for the fact that this is not a legal document and should not be construed as such, I have no doubt that we do not. There is no proper analysis of why the 12 hour Care Plan had been originally adopted. What were the perceived advantages of that plan at the time of its implementation? Why are those perceived advantages no longer seen as advantages, if such be the case? The author of the plan, Meg Allot, refers to "the flexibility which has been requested to allow for unpredictable care needs" (emphasis added). The use of the word "requested" shows that the author is not concentrating on the plan in place. Her argument for dismissing this flexibility is also of note. She writes that this flexibility "has in fact led carers to undertake tasks which they were not contracted to do, and are outside the responsibility of social services department". If, to quote the earlier plan, the 12 hours care was chosen to help with the tasks of "supervision" and "of appropriate stimulation", it is likely that in the event (for example) of no emergency, other things will be done. What is important is not to assess what happens if there is no emergency, but what will happen if there is an emergency and no one is supervising her. 28. As paragraph 4 of the Form 86A reads: "However, the important feature of the Old Care Plan was not that it provided support for particular regular needs (such as meals) but also that it provided support and security for Deborah Killigrew whenever problems arose and met her personal and other care needs which arise throughout the day and not at discrete, scheduled times." 29. The closest that one gets to that in the Care Plan is the sentence which starts: "I am advised by the District Nurses that proper management of catheter and bowel care...should reduce the incidence of emergencies which have occurred in the past....." 30. By November the catheter was no longer in use. In the Form 86A at paragraph 1.13, an example is given of what can happen: "Thus for example, on Monday 3rd August 1998, Deborah Killigrew's catheter overflowed and she was left sitting in a pool of urine (which overflowed onto the family's new settee) until the next scheduled visit by a carer." 31. The evidence in support of that is at page 16. 32. Although my decision that there was no proper consideration of why the 12 hours care was no longer appropriate would be sufficient to resolve this case in favour of applicant, I shall consider other grounds of challenge raised. 33. Mr Wolfe submits that the New Care Plan is unlawful in that it was produced without the benefit of up-to-date medical evidence. In particular he submits it failed to take into account the views of the general practitioners. In particular he places reliance on paragraphs 3.47 and 3.48 of the guidance which I have already cited in full. 34. Meg Allot states in her affidavit (page 228) that she identified at the outset of her assessment that she ought to discuss the matter with the applicant's GP. Because the applicant had moved into a new house, she did not have a GP in her new area. Meg Allot spoke to Dr Pearson, her previous GP, who told her that he no longer had the applicant's notes and was therefore unable to give any information. Meg Allot described it as "frustrating not to have this input" (page 229). When she spoke to the new GP she "did not yet feel she knew Mrs Killigrew well enough to comment on her care needs, but trusted the judgment of the district nurses". Mr Oudkerk submits that this is sufficient. In my it is clearly not. To assess the level of care which the applicant needed, it was important to have an up-to-date assessment of her medical condition, particularly any aspects of the medical condition which might indicate that she ought to be supervised at all times and, if so, what kind of supervision she would require. 35. Mr Wolfe draws my attention to the affidavit of the applicant's solicitor, Miss Jean Gould. Paragraphs 5 and 6 at pages 299 to 300 read: "The affidavit of Meg Allot also expresses the view that there is currently an over provision of care to Mrs Killigrew. There is now produced and shown to me marked 'JG2' a number of documents produced by the respondent's Social Services Department during 1996. Although these documents are now out of date, they do indicate the level of care that was then considered necessary once Deborah's condition meant that her husband was no longer able to care for her without support. I am not aware of any intervening factors which would suggest that the need has diminished in anyway. I can find no suggestion of this in any of the respondent's evidence. The report for a continuing care assessment by Gillian Bowyer indicates that 'The present situation is that Debbie's condition is very unstable, she requires constant supervision for her safety because of frequent fits', and at the last paragraph 'a higher input of care' will be needed. The Social Services file notes for the periods 2.4.96 until 18.5.96 to 2.5.96. These notes record the following:- 2.4.96 Telephone call from Gill Bowyer includes'needs constant supervision'. 12.4.96 observations of Gill Bowyer include: 36. Mrs Killigrew has multiple fits; 37. Very unpredictable in nature. She needs constant attention; 38. Duration of fits can be quite extended. 18.4.96 39. Telephone call to Dr Pearson includes the following: 40. Mrs Killigrew has severe epilepsy; 41. Very frequent fits, and would be at risk if she was left unattended; 42. There is need for Mrs Killigrew to have constant (illegible) by a carer/nurse who has nursing skills and able to manage severe epileptic fits; 43. Needs assistance in all physical care and feeding; 44. Dr Pearson mentioned psychological problems due to all the above. 26.4.96 45. Call to district nurse at 6.00. District nurse feels that Mrs Killigrew needs the care of skilled nurse to supervise care, untrained nursing assistants to give continuous daily care - supervised, to prevent Mrs Killigrew from damaging herself during a fit. Skilled in lifting and handling Mrs Killigrew also to understand mental health and depression and management. 6. The situation in 1996 clearly therefore gave rise to the provision of continuous day time care on the basis of assessed needs. There is no suggestion in the notes I have seen of any question of over provision. I am not aware of any change in the pattern of Mrs Killigrew's epilepsy. For instance the record of patient care kept by the district nursing team of the North Birmingham Community Health NHS Trust records the following entry at 20.10.98: 'Debbie had an epileptic fit at 5.40pm, put into the recovery position. She had epileptic fits in the space of 10 minutes, then fell asleep. She woke up at 6.15pm. I am concerned about the limpness in her right arm, which Debbie informs me that is very painful, and feels as if she has pins and needles in her arms. I wanted to contact the doctor, Tony informs me that this is what happens after she has had an epileptic fit.'" 46. It appears that Meg Allot did not see this information. 47. Meg Allot consulted the carers, as she said she was going to do. She, however, makes no reference to the log records kept by the carers which have been carefully analysed on behalf of the applicant. Those records reveal, among other things, the following: " 21/10/98 '5.40pm Debbie has a fit, put [her] to lay in the recovery position on living room floor. She had another fit a few minutes later. Both fits lasted around six minutes. Debbie is now sleeping it off on the living room floor.' 22/10/98 '...about 6.10pm she had a fit, this lasted for six minutes. We (Tony) placed her to lie down and placed her [head] on cushions. After the fit was over she fell asleep. Debbie had another fit at 6.25. Slept for a bit and woke up.' 23/10/98 'Escorted Debbie to day centre. Debbie ate well and had hot chocolate to drink and pudding. After lunch Debbie claimed to feel sick, a bit dizzy. Within a few minutes she had a fit. Myself and a carer from the day centre took her to a quiet room, she had another fit. Both lasting about three minutes. We lifted Debbie and lay her out onto a large floor mat. Soon after she had her last fit we lay her in the recovery position. She slept for about 40 minutes. Woke up slightly after 20 minutes, said she felt tired and went back to sleep. I phone Tony while a carer watched Debbie.....'" 48. Mr Oudkerk points out that Meg Allot concluded in the New Care Plan: "She also has epilepsy which is controlled by drugs." (see also at page 391). 49. Mr Oudkerk relies on the fact that the minutes of the 10th June meeting do not reveal Mr and Mrs Killigrew arguing for continuous care on the basis of a risk of epileptic fits. However, as Mr Wolfe has amply demonstrated, the respondent's attention had regularly been drawn to her epileptic fits and they form part of her unpredictable needs. I have already cited a passage from the letter written by the applicant's solicitors to the respondent on 4th August 1998. 50. In her affidavit of 14th August 1998, in paragraph 6 at page 11 and paragraph 14 at page 14, Miss Jean Gould refers to the worsening of the applicant's condition, that she has a form of epilepsy which results in extended seizures and "her steady deterioration means that the incident of fitting has increased". 51. On 15th April 1998 the Helen Ley Care Centre, which was providing respite care to the applicant as a person with multiple sclerosis, wrote to the respondent in the following terms: "I enclose a copy of the discharge letter I have sent to Dr Pearson which outlines the events of Debbie's most recent stay (28 March - 11 April 1998). During Debbie's previous stay (16 March - 23 March 1998), Debbie fitted every day and on three days she fitted twice. Whilst Debbie is fitting she needs to be very closely monitored and these periods can last for two to three hours. We have found that Debbie has a sensitivity to rectal Diazepam and can only be given one dose of 10mgms in 12 hours otherwise her respirations become very shallow. Mr Killigrew and Debbie assured me that she was taking her medication at home, but the fact that Debbie fitted every day indicates that she does not always take her medication to control her epilepsy. On 20 March, Debbie stated that her husband had stopped her taking her medication for epilepsy as it makes her drowsy and this annoys him. When Debbie is fitting daily, I am unwilling to allow Debbie to go out on any of the leisure activities. This is for Debbie's own safety. She therefore does not have the full benefit of respite care." 52. Mr Oudkerk points to a passage in Meg Allot's affidavit sworn on 17th May 1999 at pages 395 to 396. She was responding to an interrogatory in which the respondent was being asked whether it was accepted that Mrs Killigrew continued to have epileptic fits which are unpredictable, can be long in duration, can put her in danger of injury, including hemorrhaging, and in relation to which she would need constant supervision. The risk of hemorrhaging was increased due to the fact that she was on an anti-coagulant drug (see, for example, page 310). Meg Allot answered that she was not given this information during her assessment. As Mr Wolfe has shown, some of the information was available to her and other information was information that she could reasonably have been expected to obtain. 53. Meg Allot concludes by saying that "social services would not normally provide carers 'in case' someone had a seizure and 'could not be expected to do so'". Mr Oudkerk relies on that answer. With all respect to him and Meg Allot, that, in my judgment, is an overly simplified approach to the problem. It may be that in preparing a Care Plan the author could reach a conclusion that given the infrequency of a person's epileptic fits it would not be right to provide continuous supervision, but before that conclusion can be reached, a great deal more has to be done by way of examining the condition in which the person finds himself or herself. Mr Wolfe also submitted that there were other potential emergencies such as fire which might indicate the need for care by someone qualified to deal with the applicant in such circumstances. 54. In my judgment the respondent failed in this New Care Plan to take into account the medical evidence to which I have referred. Indeed, it seems clear that in part Meg Allot was quite unaware of it. 55. In conclusion this New Care Plan must be quashed. Mr Wolfe invited me to say that no reasonable person could prepare a scheme for this applicant that did not involve 12 hours continuous care. I cannot accept that submission. I therefore direct that this matter be referred back to the respondent for reconsideration of the applicant's care needs. 56. In conclusion I should say that I am most grateful to the excellent submissions made both by Mr Oudkerk, on behalf of the respondent, and Mr Wolfe, on behalf of the applicant. 57. MR WOLFE: My Lord, I am most grateful. Can I ask your Lordship to consider one or two other consequential orders? My Lord, page 2 of your Lordship's bundle is the relief sought within the Form 86A. My Lord has I think dealt with the declaratory relief and the order of certiorari. Can I invite your Lordship to consider items 3 and 4 there. In particular, my Lord, the matters obviously to go back to the respondent. You will have seen, my Lord, that the matter has been dealt with first by Marion Houlston and latterly by Meg Allot. My Lord has seen the problems that have arisen with that. My Lord, clearly those individuals, without wishing to criticise them personally, will come to such a matter on remission with a frame of mind and a history in their minds. Can I invite your Lordship to order, as we invite you here to do, that the reconsideration be by an assessor not previously involved in Mrs Killigrew's case. 58. May I also, my Lord, invite your Lordship - this is item 4 in the relief sought - to continue the order of Collins J pending the lawful reconsideration and the production of a further Care Plan. 59. My Lord, I also of course ask for my costs and for legal aid taxation. MR JUSTICE HOOPER: Yes. 60. MR HUTCHINGS: My Lord, if I may take those in turn? 61. My Lord, I say that mandamus and directions as to how the respondent should reconsider the matter are not necessary. Clearly they have to consider ---- 62. MR JUSTICE HOOPER: It must be someone fresh. 63. MR HUTCHINGS: My Lord, I say that if it is right that that is what they are lawfully required to do, no direction is required from your Lordship. If they do it in a manner which is not lawful we will be back here again. 64. MR JUSTICE HOOPER: I do not think we want to start this again. MR HUTCHINGS: My Lord, no. 65. MR JUSTICE HOOPER: I am quite certain they would do it even if I did not order it, but just for safety's sake I order that the new assessment is to be carried out by someone who has had no previous contact with this case. 66. The second thing you wanted was? 67. MR WOLFE: My Lord, the continuation of the order of Collins J pending a lawful Care Plan. 68. MR JUSTICE HOOPER: That does follow automatically because I have quashed the New Care Plan. 69. MR WOLFE: My Lord, yes, but I Collins J would have seen his order as an interlocutory order pending today, so I ask out of an abundance of caution. 70. MR HUTCHINGS: That is the Care Plan we are left with, my Lord, and it will remain. 71. MR JUSTICE HOOPER: I do not think you need that. You can come back to me very quickly if that was not being done. 72. Costs. You cannot object to costs. 73. MR HUTCHINGS: On costs I am instructed to make one point, my Lord, which is that there were four points relied upon by my learned friend at the final hearing. They were: firstly, there was a reduction of hours to do with the reduction of needs; secondly, that the plan was produced without up-to-date medical evidence; thirdly, the lack of consultation; and, fourthly, that the care plan was perverse. 74. Your Lordship has accepted some of those arguments, not all of them, but I say that only the first of those points was relied upon prior to the substituted Form 86A on 4th February 1999. Prior to that only the first of those points was relied upon in the original Form 86A, dated 14th August 1998, and as amended on 23rd November 1998. 75. So in substance what the respondent says is that the applicant changed her grounds somewhat during the course of these proceedings. 76. MR JUSTICE HOOPER: The applicant won on the first one in effect. 77. MR HUTCHINGS: My Lord, that does take some of the sting out of my position, but that is the point I am instructed to make. 78. MR JUSTICE HOOPER: Thank you very much. 79. No, the applicant will have her costs, to be taxed if not agreed, and, yes, you can have your certificate. 80. MR WOLFE: My Lord, I am grateful. 81. MR JUSTICE HOOPER: Is there anything further? 82. MR WOLFE: My Lord, nothing from me. © 1999 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII