R (W) v London Borough of Croydon

Summary: This was a judicial review challenge on behalf of an autistic and learning disabled young adult whose care and residence was funded by the LB Croydon. It was argued on W's behalf that Croydon had failed to consult adequately with W's parents and the staff at W's current placement before making a decision to move him. The cost of the placement was high and it was clear that this was a motivating factor in the decision. While the local authority was entitled to have regard to cost when making its decision, it was required by the National Assistance Act 1948 (Choice of Accommodation) Directions 1992, the Community Care Assessment Directions 2004 and the MCA Code of Practice to consult W, his carers, his family and, in the circumstances, his care providers, before making a final decision. The court found that LB Croydon had not complied with these obligations, and that by the time information from the parents and the care providers was given to LB Croydon, it was too late to affect its decision.

Comment: This case is of particular interest in light of the increased focus on saving costs which will inevitably be part of local authority decision-making in coming months. The judgment confirms that 'the council is entitled to terminate a placement because of the greater cost' but makes clear that before making such a decision, proper consultation must take place. In the case of a service user who lacks capacity, the MCA 2005 imposes a particular burden in relation to consultation, because, the judge held, it requires not only P's wishes to be considered, but, under s.4(7), the views of anyone engaged in caring for the person, which includes not just family members but also professional care providers. This is so even though a current care provider will often have a particular interest in preserving the status quo. The case says that a best interests decision about an incapacitated adult is still required, and the proper processes must be followed, even where there is a strong provisional view that a particular option is not financially viable. It does not grapple with the more difficult question (see also the PB case above) whether, if it was not in W's best interests to move, but the cost of the placement was too high, the local authority would have been acting lawfully in moving W to a new placement.