Date of judgment in the Administrative Court: 10 October 2025
This case concerns a challenge to West Berkshire Council’s decision on meeting the care needs of a young man (BUS) as he transitioned from education to adult services at age 25. The Council chose a model based on providing care in the place where the man could go to live, rather than a fully integrated residential care model, leading to judicial review proceedings focused on the legal framework of the Care Act 2014, public law principles, and specific procedural points.
Background
The challenge here was not to the care needs assessment itself, but specifically to the authority’s decision to commission care from one provider (BUL, a supported living provider) rather than another (BSH, an integrated residential placement). The claimant’s argument focused on the process and legality of deciding on the provider before a care and support plan (CSP) was finalised, claiming this was procedurally unlawful and contrary to the Care Act 2014. The authority had investigated a range of potential providers, eventually narrowing the options to BUL and BSH. The key dispute was between a supported living model (which the council selected) and the fully integrated residential approach preferred by the family.
The parents objected to the supported living model on the grounds that they believed their son’s needs could not be adequately met by that arrangement. They argued that supported living would introduce a variety of providers and a lack of the fully integrated, specialist support found in residential care. Their case (and that of the independent social worker they commissioned) was that the claimant required a comprehensive, stable environment with all care delivered and directly controlled by a single specialist provider—one fully familiar with his complex and long-standing care needs. The parents saw supported living as inherently fragmented, potentially less safe, and not capable of providing the same continuity, expertise, or therapeutic benefit as the residential placement they preferred. These objections were central to their opposition and were repeatedly articulated throughout the Council’s decision-making process and before the court.
The council’s process involved consulting the family extensively and reviewing reports from an independent social worker, but ultimately decided that supported living with BUL was lawful, proportionate, and in the best interests of the claimant. The High Court found that the council was entitled to make a decision about how needs would be met—and by whom—even before finalising a CSP, provided consultation was adequate and statutory duties were observed. Thus, the core of the judicial review was the lawful basis for the provider selection, not the lawfulness of the assessment itself.
The judgment emphasized that disagreement on the provider (outside the distinct and narrower context of choice of an accommodation provider under the Choice of Accommodation Regulations) did not amount to procedural unfairness or unlawfulness. The rationality and human rights grounds were dismissed as unarguable on the facts presented. The only marginal basis for permission was a technical statutory interpretation point, which was itself then rejected. The judge concluded that the challenge was ultimately to the merits and not to any unlawful act, and that the choice of supported living was well within the council’s lawful discretion.
Public Law Principles and Community Care Framework
Under sections 9, 13, 18, 24, and 25 Care Act, the authority must assess needs, determine eligibility, and—if applicable—prepare a care and support plan (CSP) specifying how those needs will be met. The Court confirmed that after eligibility decision making, the care planning involvement and plan production duties run in parallel: there is no requirement in statute or case law that the authority must prepare and finalize a CSP before it determines how those needs will be met or moves towards arranging provision in practice.
Indeed, that order would make it impossible to do a proper job. Rather, consultation about how needs might be met and what the options are is integral to the preparation of a lawful CSP, and working towards a care plan—including identifying a suitable provider—need not await the plan’s finalization.
The contrary argument advanced by the claimant’s barrister was not supported, and the court dismissed it as unworkable and not a requirement of the statutory scheme. The authority is entitled, and sometimes obliged, to progress provision to meet needs, subject to proper assessment, even while working towards a final care plan.
The Role and Implications of the Council’s Good Practice Forum
The Good Practice Forum played a decisive role in approving the funding and placement decision. The court recognized this body as the locus of final decision-making, noting that earlier communications from staff (such as social workers) were not the legal decision, but rather recommendations, which the panel’s formal decision ratified or approved.
The function of such panels is consistent with public law requirements, provided relevant evidence is considered and parties are consulted; this was found to have been the case. The judge saw no basis to challenge the panel’s role or formation as improper, opaque, or exclusionary, so long as the inputs and records showed lawful decision-making. This harks back to the judgment in Savva in 2019, in which the same barrister Steve Broach appeared at first instance – the judge said that the Panel’s reasoning was what was important, and subject to the legal requirement of rationality and transparency.
The Guidance makes it clear that Panels can override front line social workers’ views but that since the members won’t have seen the individual or talked to the family, they should take care to attend to all relevant considerations and work to a constitution and roles protocol, and try not to micro-manage the decision-making, saving such fora for high-cost or controversial cases. The judge noticed that in the leading case on what is required for a valid assessment or re-assessment, (Merton (JF)) the judge there had also been faced with a decision that might have gone, but did not in the end go to a Panel, but one where the social worker simply repeated that ‘it had been decided’ that the man JF no longer needed a ‘total care environment’ – without anyone ever identifying who HAD made that decision. We are sure it would have been a middle manager between the front line worker and the seniors on the panel – one who was under no illusions as to what the Panel would ratify, if she or he allowed the social worker being line managed to put forward a case for a high cost package, with any weaknesses remaining in it.
We have long suggested that the proper role for any high cost decision-making panel or quality assurance forum is to use expertise and social work values and the knowledge base to choose between two or more appropriate alternatives, not mess with the heads and professional confidence of under-trained and under-supervised front line staff by expecting ever more justifications from them, and assurances that no stone has been left unturned. This role of making difficult choices is the essence of making Best Value decisions, and what makes senior social workers into true professionals. Anything else simply conveys to social workers learning the job that the cheapest method of meeting the needs is the one the Panel really wants to be told about, and that is not discharging the Care Act, properly, or compliantly with public law principles.
The limited relevance of the Independent Social Worker’s Opinion
The opinion of the independent social worker was found by the court to carry little or no legal weight. Her reports were treated as documents generated in the course of the process but not as admissible expert opinion—they did not meet the requirements of CPR Part 35 and were essentially advocacy for the family’s position, repeating and amplifying their arguments rather than providing materially new evidence or authoritative needs assessments. This harks back to the problem with the independent social worker’s role in the Cambridgeshire (KM) case, in 2011, in which the same barrister Steve Broach appeared for the Claimant – the ISW was there also treated as a mouthpiece for the parent, having allowed himself to be seen in that way. The lawful needs assessment under the Care Act is that of the local authority; the ISW’s separate views could not substitute for this and had limited evidential or legal significance in the judicial review.
Problems with the decision: the small but fatal factor of the need for a tenancy for the operation of any supported living model for care and support, and consent to shared care…
A significant, unresolved issue in the decision, which would have made for a far stronger challenge in our view, lies in the mechanics of supported living budgets – and tenancies – for individuals lacking capacity.
The judgment does not address the practical problem: in supported living, there is a requirement that the individual holds a tenancy, to ensure separation between the arrangements for tenure and the arrangements for the provision of personal care, so as to avoid the registration consequences that flow (residential care provision arising from the provision of ‘(personal) care together with accommodation’ and thus defeating access to housing benefit). This would mean that councils’ ASC budgets had to cover the direct provision of the accommodation instead of it being offset through the benefit system.
If the individual lacks capacity and there is nobody with the clear legal authority to execute a tenancy on their behalf (ie where no authorised alternative exists, such as a finance and property deputy or LPA), there is an impasse, unless and until the Court of Protection makes a substitute decision on behalf of the individual that the tenancy should indeed by signed. Best interests decision-making, which operates as a defence to tortious claims for trespass to the person, or for interference with private law interests where consent is required to justify the interference, is of no use to give effect to a tenancy if the individual does not have the capacity to conclude an agreement.
There is case law (Perry Clarke, 2015) where the Court specifically saw requiring a person to move to a place where he did not want to go, and where he would have had to have agreed to pay rent for the privilege, on top, simply in order that his care needs could be met as cheaply as Sutton would have liked, as a disproportionate impingement on the claimant’s human rights under article 8.
More fundamentally, supported living is a model of service delivery, not a contract type that councils can directly commission. Paying for care in the place where the person has secured the right to occupy the premises is home care, even if it is seen as a different species, due to its wrap-around nature and focus on support rather than intensive hands-on personal care. It is in fact the antithesis of a placement – it is making the most of a person having been helped to sort out their own accommodation, without going to the Housing Authority, and without presenting the hugely inconvenient vista of needing to meet a single disabled person’s needs in a single person setting, or at home with his or her parents, which is hugely expensive. And never more so when the parents are well enough informed to know that any informal input they might provide must be both willing and able, before it can offset the duty to make provision or otherwise to ensure that the needs are met – adequately and appropriately, regardless of the cost.
The BUS Court does not engage with this structural issue, leading to a gap in reasoning about how, in law and fact, the authority can deliver on its Care Act duty to “secure” the provision when it lacks legal control over the accommodation element and when the necessary legal preconditions (such as a tenancy) are absent or cannot be lawfully executed by or for the service user, other than with the co-operation of an authorised third party or court proceedings.
Nobody ever addresses the fact of s25(11) Care Act either, which forbids the combination of two or more people’s Care Plans and thus implicitly their personal budgets, unless every single person looking to share their plans, consents – a concept which unavoidably requires capacity before that consent can be meaningful. This might have been intended as the means, by our legislature, to make shared care a limited and lawful qualification to the otherwise mandatory duty to produce a Personal Budget for every eligible individual. There is no fallback position provided for that that consent can be provided on the basis of best interests if the person for whom the combined plan is intended lacks capacity, at least not by a council, as opposed to a person with some form of formal welfare authority.
If that supposition is correct, it would seem that nobody mentioned that to the local authorities nationwide, who have been developing supported living over the last 10 years.
All we can say is that commissioners and Supported Living Providers should maybe take note when next crafting a new framework agreement for public procurement purposes, or responding to a tender which requires shared care hours and fees as the core model. Either side could ask itself whether they’d ever seen a Care Act care plan with “one third of a care worker” written up as a rational or adequate way to meet anyone’s needs! All combinations of care plan mean that the person with the over-provision is accepting that the person with the under-provision can use their hours, which they’re paying for, even if an emergency happens and all three people who need one third of a care worker all need a whole care worker at the exact same time.
The link for the West Berkshire case full judgment is here.
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