High Court quashes Care Act assessment over failure to identify overnight needs

Vikram Sachdeva KC though dismissed four other grounds argued for the claimant.

The court heard the applicant/claimant is aged 70 and suffers from memory and cognitive difficulties, diabetes, alcohol dependency syndrome and reduced mobility. He is also incontinent, hallucinates and suffered a heart attack in 2024.

He lives in a two-bedroom ground floor flat adapted with a wet room and level access with his son. His wife assists with care but lives elsewhere.

An occupational therapy assessment though found he is not impulsive, not at high risk of falls and does not wander or try and leave the property unsupervised.

Tower Hamlets argued that it properly considered providing overnight care, but rejected this and that decision had been within the range of permissible ones, since the claimant relied on the subjective view of his family that he requires overnight care.

Mr Sachdeva said in his judgment: “In my judgment the conclusion does not follow from the evidence, and there is an unexplained leap in reasoning which fails to justify the conclusion.

“The[council] has accepted that the Claimant, with progressive dementia, wakes up at night confused, and may become distressed. At that point he needs to be reassured, re-directed, and settled back to sleep.

“If he wishes to go to the toilet, which may not be due to a physical need, he needs assistance. Although there is no evidence of the average frequency of such waking, the evidence is that the Claimant only sleeps for 2–4 hours per night.

“It is not possible to understand how, in those circumstances, the [council] could conclude that there is no need for overnight care (whether sleeping care or awake care). None of the reasons proffered can explain the conclusion.”

Mr Sachdeva said whether the claimant suffered falls or needed hospital admissions “is not conclusive of whether nighttime care is required”.

His ability to use a toilet during the day “is not evidence that he is able to at night, when potentially confused,” Mr Sachdeva said and the fact that existing care arrangements remain effective “is not evidence that overnight care is not required”.

One of the claimant’s sons provides unpaid care at night but has said this affects his ability to work in the daytime “so it is unclear that he can continue in this role for much longer.

“Even if he could, that would not be evidence that there was no need for overnight care.”

The judge said: “This ground of review therefore succeeds, and the needs assessment is quashed, and must be reconsidered.”

He added though that in the absence of evidence of the frequency and duration of the care provided on a nightly basis, “I do not consider that the only reasonable outcome is the provision of overnight care. I therefore do not grant a mandatory order”.

The grounds he dismissed concerned breach of s149 Equality Act 2010, irrational refusal of medical priority, breach of Article 8 rights and unfairness in failing to disclose assessments.

Mark Smulian