Disabled woman loses challenge against assessment of care needs based on unlawful reliance on third party

About this case:

• Citation:
  [2025] CSOH 38
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Lake

Jodie Taylor, who moved to South Lanarkshire with her mother in December 2022, contended that the respondents had unlawfully reduced her hours of non-residential social care in breach of the public sector equality duty. The respondents contended that her approach misconstrued the factual position, and that the decision provided for 100 per cent of her needs as assessed by them to be provided without third party assistance.

The petition was considered by Lord Lake, with M Dailly, solicitor advocate, appearing for the petitioner and D Blair, advocate, for the respondents.

Relying on third party

Until December 2022, the petitioner lived in an area for which East Renfrewshire Council was her local authority. Following a community care needs assessment by that Council, she received a care package paid for by the Council amounting to a total of 61 hours per week. This included six hours of respite care for her mother with whom she lived and who provided a substantial amount of care for her.

When the petitioner moved to the area of South Lanarkshire Council, the respondents carried out a new assessment of her needs in terms of the Social Work (Scotland) Act 1968 and provided her with a draft support plan. They were unable to complete the plan within the 12-week period and therefore undertook to continue the level of support provided by East Renfrewshire Council during the process, without prejudice to the support package that would be provided after the work was completed.

The respondent’s completed assessment, issued in 2023, proposed the petitioner be provided with 54.5 hours of support, less than provided previously, prompting her to make a complaint. In a letter dated 19 July 2024, the respondents summarised the support plan they were willing to make available, under which they would provide 39.5 hours of support with the remaining 15 provided via an application to the Independent Living Fund the petitioner would have to apply for herself. If she did not wish to proceed with this application, the plan would revert to 48.5 hours per week.

For the petitioner it was submitted that, in relying on a third party to provide part of the support assessed as required, the respondents had acted ultra vires. It was noted that a published policy in relation to the Fund states that “ILF Scotland funds are not designed to meet statutory needs as assessed by a Health and Social Care Provider”. The respondents submitted that the level of support required was assessed as 48.5 hours, and the ILF plan would augment that base level of support.

Confusion set in

In his decision, Lord Lake began by observing: “It seems that part of the petitioner’s concern about a reduction in the proposed provision of care stems from the fact that what the respondents will provide is less than was provided by East Renfrewshire Council. The respondents emphasised that this was not an appropriate contrast as it was not comparing like with like as the East Renfrewshire Council support package included some respite care which theirs does not. However, the key point is that it is not appropriate to compare the respondent’s figure with that for East Renfrewshire Council and consider it a reduction.”

He continued: “It is also possible to see why some confusion has set in as to precisely what level of support had been assessed as being needed and what level would be provided by the respondent. The proposed support plan provided is set out in a way which makes it look as if part of the support necessary to cover the critical and substantial risks would be provided by the ILF. It appears at first that the Council would only provide 39 hours support as opposed to the 48.5 hours. However, on careful reading of the letter, it is apparent that the respondent accepted all along that they would provide 48.5 hours in order to meet the assessed need for care.”

Noting the respondents were willing to provide 48.5 hours of care themselves, Lord Lake said: “The conclusion that when the offer from the respondents is properly construed it does not represent a level of care less than has been assessed to be required is an answer to all the petitioner’s grounds of challenge. The respondents are not relying on discretionary funding from the ILF in order to meet assessed need. They are using it to provide something in addition to the assessed need.”

He concluded: “Although there might be an arrangement whereby the ILF provide some element of care required to address critical or substantial risks, that is not a necessary element of the proposed plan and the respondents will provide a baseline level that is sufficient. They have therefore not acted in a way that is ultra vires. Neither can it be said their decision meets the high test for irrationality.”

For these reasons, the petition was refused.