Critique of BUS (West Berkshire)

R (on the application of BUS) v West Berkshire Council [2025] EWHC 2599 (Admin)

BUS is a young man with lifelong, complex needs whose Care Act eligible needs had long been met by a highly integrated residential college placement run by BSH, combining education, care and multi‑disciplinary therapeutic input.

On turning 25, his Children and Families Act education rights ended, triggering the need for West Berkshire to decide how to meet his adult care and support needs, going forward.​

The council explored options and ultimately chose a supported living placement with BUL, where BUL would co-ordinate but not itself deliver all elements of the package, with more mixed providers and a stronger “independence” narrative.

BUS’s parents, backed by an independent social work report, argued that his needs could not lawfully or safely be met in that model and pressed for an adult residential placement with BSH instead.​

On 10 July 2025, a Good Practice Forum panel approved BUL as the option to be funded, indicating that while the family could “top‑up” anything beyond a capped direct payment, if they wanted to fund a placement at BSH, but the council’s core offer would be pegged to the BUL cost.

A care and support plan was then produced in August. BUS, acting through his father and litigation friend, brought judicial review challenging the 4 July communication, the 10 July panel decision, and the August care and support plan on Care Act, public law and Article 8 Human Rights grounds.

The challenge was roundly rejected, with the Court upholding the approach and practice of West Berkshire Council.

The judgment is broadly orthodox on Care Act structure and public law standards, but it underplays or dilutes several core duties regarding the substance of care planning, the evidential “nexus” between assessment, eligibility and the chosen model (ie a move from a wholly integrated care environment vs supported living), and the intensity of scrutiny required where there is a radical shift in the type of provision after many years of integrated input. It left out several relevant previous decisions and some glaring gaps in the plan.

The judge’s rejection of any rigid sequencing in section 24(1) is conventional and unexceptionable, in so far as it recognises that the duty to “meet” needs under section 18 is not contingent on a care and support plan being finalised, and that consultation about options inevitably occurs during the preparation of the plan. However, a lawful decision to alter an existing model of provision (a care package) requires

1. a lawful reassessment, (this one had not been challenged, please note), a lawful eligibility decision, a care and support planning process which has accorded involvement rights to one and all, including advocacy where there is a material disagreement between one’s informal participation supporters and the Council; a process which transparently records the authority’s reasoning on how needs will be met, transparency about costing assumptions and the taking of all reasonable steps to secure agreement with reasons stated, if a dispute persists.
2. In JF v Merton the unlawfulness lay precisely in the authority having pre‑determined the move away from an on‑site MDT team “before the Care Act process” had been completed, and without transparent reasoning as to why MDT input was no longer needed after 15 years. That can be characterised as a breach both of the assessment duty and of section 1 well‑being duties.

On that footing, BUS as a decision is vulnerable in two ways which the judgment does not fully confront:

• First, the Good Practice Forum’s decision text is bare and obviously formulaic (“needs can be met under the Care Act”, “best interests”, “supports independence”).
• Against the Merton approach, the absence of structured linkage from the specific assessed needs and well‑being domains (including the former integrated education/therapeutic milieu and multi‑disciplinary provision) to the BUL supported‑living model looks like exactly the kind of evidential lacuna that should vitiate the decision, absent a clear chain of reasoning.
• Secondly, the Council’s practice of communicating the decisive outcome (the 4 July email and then the 10 July panel decision) before any meaningful involvement around the CSP is difficult to reconcile with the section 1 duty to secure genuine participation, and with the Guidance’s insistence that planning must be person‑centred, transparent about costs, and capable of being challenged on sufficiency.

The Judge treats the panel’s decision as a discrete, freestanding “how needs will be met” determination, and then reads the later CSP almost as a post‑hoc rationalisation exercise. That sits uneasily with CP v NE Lincs and P v Croydon, where opaque and ex post explanations of personal budgets and packages were held to be unlawful breaches of section 26 and of public law standards, notwithstanding the existence of an assessment and some form of plan.

Treatment of the CSP duty and transparency

The judgment characterises the CSP as simply “the document prepared”, and treats the absence or lateness of the 1 August plan as a relatively minor procedural issue. That underplays three linked points from past cases law and the Care Act

• A CSP must specify: the identified needs, the eligibility conclusions, the needs to be met and “how”, the links to the section 1 well‑being factors, and a transparent personal budget showing how the funding is rationally related to the package.
• Section 26, read with CP v NE Lincs, creates a substantive duty to produce a personal budget that is (a) sufficient, (b) broken down, and (c) reasoned, so that the service‑user can see how the authority claims that the package meets the assessed needs. Failures are not “technical”; they render the plan and budget unlawful and can sound in restitution.
• Care and Support Guidance requires that panels are not used to “micro‑manage” or apply blanket financial caps, but any case‑by‑case departure from an indicative budget or model must still be reasoned and consultative.

On that view, the West Berkshire panel’s statement that BUL “can meet the needs under the Care Act”, coupled with an immediate suggestion of a fixed direct payment pegged to BUL’s cost with a family top‑up to BSH, is problematic in at least four respects which the judgment does not explore:

• It strongly suggests a cost‑anchored decision (BUL as reference price; BSH only via top‑up, via a direct payment that cannot be spent on long term residential care!), inviting comparison with Croydon (P) and Ombudsman’s reports such as Merton, where capping at residential rates or privileging a cheaper model without a transparent analysis of suitability was held to be unlawful fettering.
• There is no transparent explanation of why the integrated BSH model is no longer necessary to meet need, given the history and the parents’ evidence, nor of how the supported‑living configuration will replicate or substitute for the multi‑disciplinary/holistic environment to which BUS had been habituated since childhood.
• The “ability to top‑up” formulation risks the same logical error criticised in CP: treating the family’s willingness or capacity to contribute as an exculpatory factor, without first articulating a lawful “core offer” that, taken alone, meets all eligible needs.
• The panel reasoning is insulated from meaningful challenge by the lack of prior disclosure and involvement, contrary to the CP/P v Croydon insistence that families must see and be able to contest changes in hours, model and budget before they are finalised.

The judgment accordingly takes too forgiving a view of both the form and timing of the CSP, and gives too little weight to transparency and sufficiency as justiciable requirements rather than mere best practice.

Weight given to independent evidence and “good enough” assessments

Courts will often defer to social work judgment, particularly on eligibility, but they also highlight key safeguards:

• Section 9 and the Assessment Regulations require an “appropriate and proportionate” assessment, with proper regard to fluctuating needs, well‑being outcomes, and the individual’s desired outcomes; JF (Merton), Antoniak and Suffolk v BG all show that omissions and restrictive framings can render an assessment unlawful.
• The Tameside duty requires an authority to take reasonable steps to inform itself, particularly where sophisticated clinical or behavioural questions arise and where there is conflicting expert evidence; authorities are not obliged to commission new reports in every case but must be able to justify why they prefer one body of evidence to another.

In BUS, the judge minimizes the legal significance of the independent social worker’s reports, in part because they do not comply with CPR 35 and are advocacy‑ and parent- flavoured; and emphasises the Council’s long‑standing knowledge of BUS and the absence of a formal challenge to the needs assessment.

That stance is problematic for two reasons:

First, for a young adult making a life‑changing transition away from an all‑inclusive integrated provision at 25, the existence of a detailed ISW critique of the supported‑living option is the archetypal “Tameside” trigger: a reasonable authority would be expected either to

• explain, in the care planning material and/or panel record, why its own practitioners reject the ISW’s view, or
• obtain further specialist evidence capable of resolving the dispute (for example, fresh MDT input focused on adult‑life supported living suitability).

Secondly, the fact that the assessment itself is not formally pleaded as unlawful does not relieve the court of examining whether the assessment and the CSP, taken together, sufficiently grappled with the embedded need for integrated MDT‑style support, or whether the Council simply proceeded on a presumption that any “ordinary” supported‑living model is acceptable so long as a provider asserts that it “can meet” the needs. The Merton and Suffolk materials regard such presumption‑driven reasoning as a classic public law error.

The judgment’s narrow reading of the ISW’s status risks conflating admissibility with weight and allowing a local authority to sidestep serious, well‑documented concerns by re‑labelling them as partisan and therefore ignorable, when the Care Act framework actually expects the authority to “address” such evidence rationally, even if only to reject it.

Well‑being, least restriction and Article 8

The decision treats section 1 and Article 8 largely through the lens of rationality: so long as BUL can arguably meet BUS’s core care needs and is closer to family, the well‑being and proportionality requirements are seen as satisfied.

• Well‑being is explicitly multi‑dimensional, embracing emotional stability, continuity of relationships, participation, and suitability of accommodation, with no hierarchy and with a clear expectation that decisions engage substantively with each relevant domain.
• Least‑restrictive options are not equated with “supported living by default”; “independence” rhetoric must not obscure whether the environment and configuration are actually less (or more) restrictive in real‑world terms, given the person’s cognitive profile, attachment patterns and history of institutionalisation.
• Article 8 analysis is not satisfied merely by reciting that family proximity is a benefit; it demands a structured proportionality assessment where there is evidence (as from the ISW) that the shift in model may destabilise the individual’s psychological equilibrium and family life, and where a functionally equivalent but more expensive alternative exists.

On that approach, a more rigorous judgment would have:

• Required the Council to show how each of the section 1 domains most salient to BUS (long‑term relational security; emotional well‑being; continuity of educational/therapeutic milieu; living‑accommodation suitability in light of autism) was considered and balanced against the asserted independence and family‑proximity gains of BUL.
• Asked explicitly whether any less intrusive alternative—continuation or adaptation of the BSH model as an adult residential placement—was rejected on rational grounds, or merely on cost/convenience, and whether any proposed safeguards at BUL (for example, guaranteed MDT input, staffing ratios, and environmental adaptations) were specified in the CSP and contract rather than aspirational.

By eliding these questions into a broad rationality verdict, the judgment arguably lowers the intensity of review below that suggested in Merton and CP when dealing with a young adult with lifelong, complex needs facing a fundamental change in setting.

Our concerns and overall public law robustness

Our work with providers in 2025 has taught us that their input will often be the most aspirational and competent and experienced; the statutory care plan will often benefit by starting life by coming from the culture and computers of those who’ve been pre-selected to bid with the best plan. The Care Act envisaged that the expertise would emanate from the Council sector, but it has been hollowed out over the last two decades.  We’ve been teaching providers to insist on the Council doing the job of care planning, by obliging them to come off the fence with their thinking as to what should come OUT of a care plan from a provider, if the price is not acceptable!

Nobody dealt with the line in the s117 mental health aftercare case AK to the effect that a plan to make a plan is not an adequate plan; nor the problem that Councils don’t PROVIDE supported housing, when people or their lawfully authorised representatives sign tenancies to make arrangements for their own housing, and s23 and Campbell make it almost impossible for Councils to make direct ‘accommodation plus’ type housing arrangements under the Care Act, if people could have been referred to Housing Act functions first.

Nobody dealt with the cost assumptions for BUL being based on shared care, which it is not lawful to proceed with via a combined care plan (see s25(11)), absent the agreement of every single person concerned, and without any best interests fall back decision making role for anyone, other than the Court of Protection through a substitute decision for the person himself.

So this decision risks heralding in an era of people being forced into adversarial proceedings (because one cannot imagine these parents agreeing to sign a tenancy as deputies) for substitute decision making from the Court of Protection to sanction the tenancy and adversarial CopDol proceedings, but without legal aid. 

The decision in BUS sits at the more deferential end of the judicial review spectrum:

• It endorses early and decisive panel‑level choices on “how” needs will be met, with relatively light scrutiny of how well the CSP and budget demonstrate sufficiency and reasoned linkage between needs and model.
• It accepts a minimal form of engagement with family‑commissioned evidence and with the section 1 factors, rather than enforcing the kind of granular “have regard to” analysis seen in Merton and the restitutionary line of CP/P v Croydon.
• It tacitly validates a commissioning‑driven move from integrated provision to supported living with top‑up language that looks dangerously close to the “cap at residential” thinking condemned in Croydon (P) and Ombudsman’s decisions.

From a legally sophisticated Care Act standpoint, the judgment can therefore be criticised as:

• Under‑specifying what a lawful CSP and personal budget must look like in transition cases of this gravity;
• Treating panel‑level, cost‑sensitive decisions as presumptively lawful, absent manifest irrationality, rather than insisting on explicit, evidence‑based reconciliation of needs, wishes, and options; and
• Missing an opportunity to reinforce that when an authority proposes to unpick a long‑standing, highly specialised package, it must do more than point to a generic supported‑living model said to be “capable” of meeting needs—it must be able to show, in writing, that the new configuration is both objectively sufficient and lawfully justified, and that any residual gaps are not being implicitly pushed onto the family via top‑ups or invisible caring expectations.

That is not a social care safety net worth having, in a civilised society, to my mind.