QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Deputy Judge of the High Court
| THE QUEEN
on the application of K.M.
(by his mother and litigation friend J.M.)
|- and -
|CAMBRIDGESHIRE COUNTY COUNCIL
(instructed by Messrs Scott-Moncrieff, Harbour & Sinclair) for the Claimant
Mr Jonathan Auburn, Mr Benjamin Tankel
(instructed by Legal Services, Cambridgeshire County Council) for the Defendant
Hearing dates: 11 and 12 November 2010
Royal Courts of Justice, Strand, London
Crown Copyright ©
His Honour Judge Bidder QC :
i) that the Defendant had failed to assess the Claimant's needs;
ii) that the Defendant had failed to provide reasons for its service provision decisions;
iii) that the Defendant's methodology used to calculate care packages lacked transparency;
iv) that the Defendant was in breach of its duty to adapt the Claimant's home.
"(1) a Local Authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority, shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say, persons who are aged eighteen or over blind, deaf or dumb, or who suffer from mental disorder of any description and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister."
"(1) Where a Local Authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for or any of the following matters, namely-
(a) the provision of practical assistance for that person in his home;
(b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;
(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;
(d) the provision for that person facilities for, or assistance in, travelling to and from his home for the purpose or participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;
(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;
(f) facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise;
(g) the provision of meals for that person whether in his home or elsewhere;
(h) the provision for that person of, or assistance to that person in obtaining, a telephone and any special equipment necessary to enable him to use a telephone,
then, subject to the provisions of section 7(1) of the Local Authority Social Services Act 1970 (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State)] [and to the provisions of section 7A of that Act (which requires local authorities to exercise their social services functions in accordance with directions given by the Secretary of State)], it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29."
"Subject to subsections (5) and (6) below, where it appears to a Local Authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority-
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."
"2. A fundamental aspect of this guidance is for individual councils to make only one eligibility decision with respect to adults seeking social care support; that is, whether they are eligible for help or not. This decision should be made following an assessment of an individual's presenting needs. Councils should not operate eligibility criteria for specific types of assessment; rather, the scale and depth of the assessment should be proportionate to the individual's presenting needs and circumstances. Neither should councils operate eligibility criteria for different services to meet eligible needs. The most appropriate and cost effective help should be determined by matching services to eligible needs through the use of statements of purpose. …
28. Appropriate assessment lies at the heart of effective service delivery for a whole range of health and social care provision. Its purpose is to identify and evaluate an individual's presenting needs and how they constrain or support his/her capacity to live a full and independent life. Councils should ensure that individuals are active partners in the assessment of their needs. …
42. Eligibility for an individual is determined following assessment. ...
43. Once eligible needs are identified, Councils should meet them. ..."
"Councils should ensure that each decision about a person's eligibility for support is taken following an appropriate community care assessment ... involving both the person seeking support and the people around them assisting with their care and choices. This assessment should be based on the individual's needs, following which planning for support should be undertaken to identify what outcomes the individual would like to achieve and how they might use the resources available to them to do so."
"Given the necessity of prioritising needs for social care, fair and transparent allocation of available resources depends upon effective assessment. Decisions as to who gets Local Authority support should be made after an assessment, which should be centred on the person's aspirations and support needs involving both the person seeking support and their carers."
"Regulations may make provision for and in connection with requiring or authorising the responsible authority in the case of a person of a prescribed description who falls within subsection (2) to make, with that person's consent, such payments to him as they may determine in accordance with the regulations in respect of his securing the provision of the service mentioned in paragraph (a) or (b) of that subsection…
(3) Regulations under this section may, in particular, make provision—(a) specifying circumstances in which the responsible authority are not required or authorised to make any payments under the regulations to a person [or in respect of a person], whether those circumstances relate to the person in question or to the particular service mentioned in paragraph (a) or (b) of subsection (2);
(b) for any payments required or authorised by the regulations to be made to a person by the responsible authority ("direct payments") to be made to that person ("the payee") as gross payments or alternatively as net payments; …..
(4) For the purposes of subsection (3)(b) "gross payments" means payments—
(a) which are made at such a rate as the authority estimate to be equivalent to the reasonable cost of securing the provision of the service concerned (my stress); but
(b) which may be made subject to the condition that the payee [in the case of direct payments under subsection (1), or the beneficiary in the case of direct payments under subsection (1A),] pays to the responsible authority, by way of reimbursement, an amount or amounts determined under the regulations."
"The aim of the RAS should be to provide a transparent system for the allocation of resources, linking money to outcomes while taking account of the different levels of support people need to achieve their goals. It allows people to know how much money they have available to spend so that they can make choices and direct the way their support is provided."
"...Mr Buttler relies on the House of Lords decision in R v Gloucestershire County Council and another, ex parte Barry  AC 584. The issue in that case, is whether, under s 2 of the 1970 Act, a Local Authority was entitled to take account of its resources when assessing or reassessing whether it was necessary to make arrangements to meet an applicant's needs. Mr Buttler draws from this case a two stage process. He says that the first stage is an assessment stage of an eligible need, and that this assessment can and indeed should include consideration of 'relative needs'. However, it is Mr Buttler's submission that Barry is authority for the proposition that once a person is assessed as having an eligible need, there is then an absolute duty to meet those needs and that to leave them unmet in part, would constitute a breach of statutory duty.
23. I have no doubt whatsoever that Barry is authority for the proposition that assessment of an eligible need is a relative assessment. Indeed, the declaration made by the House when allowing the appeal by the Local Authority in that case was that a Local Authority may take its resources into account when assessing or reassessing needs under section 2(1) of the Chronically Sick and Disabled Persons Act 1970. Lord Nicholls of Birkenhead said the following in his speech at 604:
'Under section 2(1) 'needs' are to be assessed in the context of, and by reference to, the provision of certain types of assistance for promoting the welfare of disabled persons: home help, meals on wheels, holidays, home adaptation, and so forth. In deciding whether the disability of a particular person dictates a need for assistance and, if so, at what level, a social worker or anyone else must use some criteria. This is inevitably so. He will judge the needs for assistance against some standard, some criteria, whether spoken or unspoken. One important factor he will take into account will be what constitutes an acceptable standard of living today.'
Standards of living, however, vary widely. So do different people's ideas on the requirements of an acceptable standard of living. Thus something more concrete, capable of being applied uniformly, is called for when assessing the needs of a given disabled person under the statute. Some more precisely defined standard is required, a more readily identifiable yardstick, than individual notions of current standards of living… In setting the standards, or 'eligibility criteria' as they have been called, the Local Authority must take into account current standards of living, with all the latitude inherent in this concept... The relative cost will be balanced against the relative benefit and the relative need for that benefit.
24. Lord Clyde draws a clear distinction between assessment of need and performance. He said:
'Section 2(1) imposed a duty on the Local Authority to make welfare arrangements for an individual where they were satisfied that in the case of that individual it was necessary in order to meet his needs to make the arrangements. This was not a general but a particular duty and it gave a correlative right to the individual which he could enforce in the event of a failure in its performance...'
The right given to the person by section 2(1) of the Act of 1970 was a right to have the arrangements made which the Local Authority was satisfied were necessary to meet his needs. The duty only arises if or when the Local Authority is so satisfied. But when it does arise then it is clear that a shortage of resources will not excuse a failure in the performance of the duty. However neither the fact that the section imposes the duty towards the individual, with the corresponding right in the individual to the enforcement of the duty, nor the fact that consideration of resources is not relevant to the question whether the duty is to be performed or not, means that a consideration of resources is not relevant to the earlier stages of the implementation of the section which leads up to the stage when the satisfaction is achieved.
25. I agree with Mr Buttler in his submission that Barry is authority for the proposition that resource issues are not relevant to the question whether the duty has been performed or not. Accordingly, the question that has to be answered in this case is whether the decision of the Local Authority panel to provide the Claimant with a personal budget of £170.45p constituted a discharge of their legal duty.
26. Mr Buttler submits that the decision of the panel does not constitute a discharge of their legal duty. He submits that the manner in which the Defendant used the RAS tool is impermissible and cannot be used as a starting point, because it imposes an unlawful cap on the budget. I do not accept this submission.
27. Counsel have drawn my attention to a Department of Health document 'Resource Allocation Tool 2: Step by Step Guide' (Gateway 9878, available at www.toolkit. personalisation.org.uk) which has as its sub-heading 'A practical guide to developing resource allocation systems for personal budgets'. I have found this document very helpful. It illustrates that there are different approaches that can be taken to decide how a number of 'points' will translate into a personal budget. Two of the models can best be described as linear models which use either a fixed price per point, based on test sample costs; or a fixed price per point based on total current budget. Both of these models meet the needs of the service user in absolute terms, and so I understand it, Mr Buttler on behalf of the Claimant , has no quarrel with either of these approaches.
28. He does contend, however, that the third model; namely the non-linear relationship between points and price based on current distribution of care packages (the relative approach) is unlawful.
29. The RAS Allocation Analysis and Summary carried out by Symmetric (the Consultants who were responsible for developing the Defendant's scheme in July 2009) was disclosed in Response to the Part 18 Request. This states that a new methodology has been developed to address issues underlying under-allocation and to provide a more sustainable alternative. The Report states that the approach is a relative approach which bases the percentile accorded to a SAQ score to its relative position against other SAQ scores for that user group.
30. As I understand Ms Sackman's submission, on behalf of the Defendant, if the use of a non-linear RAS tool had been the sole basis for the decision, then there would at least be a persuasive argument that the decision was unlawful. However, Ms Sackman submits that the RAS tool is not the sole basis for the decision, but it is simply a starting point in the assessment process.
31. I agree with Ms Sackman on this point. The RAS has been championed by the Department of Health, and certain local authorities, so I understand, have been encouraged to develop RAS schemes as indicative tools in order to discharge their duty so as to meet all of the service users' assessed needs.
32. The Defendant has not taken the indicative budget and said that that is the final figure. Rather, it has used a relative and non-linear approach, which it considers provides, as a starting point, a better reflection of the way in which care needs and costs are distributed to all those service users across the authority. Ms Sackman submits that the non-linear approach reflects reality. That may or may not be, but these are matters for the local authority. I agree with her in her submission that the use of the RAS by the Defendant is not unlawful, and I find against the Claimant in the first challenge to the Defendant's decision."
"It is axiomatic that local authorities do not have a bottomless pit of funds at their disposal. It is permissible for them to take account of the relative severity of individuals' needs and the availability of resources when determining whether it is necessary to make arrangements to meet an individual's needs. However, once a Local Authority has decided that it is necessary to make such arrangements, it has an absolute duty to provide the individual with the services or the personal budget with which to meet the assessed needs: see R v Gloucestershire County Council, ex parte Barry  AC 584"
"16. In this Court the ground of appeal in relation to the use of the RAS is expressed in these terms:
'The Learned Judge erred in deciding that the [Council] were entitled to rely upon a figure generated by their Resource Allocation System, based on [Mrs Savva's] need for community care services in relative terms, as the starting point for calculating how much money they would pay [her] for the purchase of community care services because section 2 of the 1970 Act and Regulation 14 of the 2009 Regulations requires an individual's eligible needs to be met in absolute terms.'
17. The submission is that because section 2 requires the eligible assessed needs to be met in absolute terms it is wrong for the Council even to consider what an individual's needs are in relative terms or to use relative needs as the starting point for the calculation of the personal budget allocated to meet the individual's needs.
18. I do not accept this submission. It is very clear that the figure generated by the RAS was not used as anything other than a starting point or indicative allocation. It is, as the written submission on behalf of the Secretary of State for Health puts it, 'the start rather than the end of the process'. I have already described how the process developed thereafter and how the FACE assessment and the earlier SAQ, when considered along with the RAS figure, resulted in the Panel determining an allocation of £170.45 per week as against the indicative RAS figure of £112.21 per week. Mr Brown's second witness statement describes the process in more detail. I do not think it can be said that the Council ever lost sight of the fact that, once Mrs Savva's eligible needs had been assessed, it was under an absolute duty to provide her with the services that would meet those needs or a personal budget with which to purchase them. The Council was entitled to use methodology recommended by the Department of Health which, in my judgment, did not have the effect suggested on behalf of Mrs Savva. It has never been suggested that the Department of Health's guidance is unlawful. For these reasons, I consider that the Deputy Judge was correct to refuse a declaration that the RAS is an unlawful basis for determining a personal budget. Its deployment as a starting point was lawful."
"21. In many cases, the provision of adequate reasons could be achieved with reasonable brevity. In the present case, I would consider it adequate to list the required services and assumed timings (as was actually done in the FACE assessment), together with the assumed hourly cost. That would not be unduly onerous. I appreciate that some recipients require more complicated arrangements which would call for more expansive reasoning but if that is what fairness requires, it must be done. In the course of these proceedings it seems to have been suggested on behalf of Mrs Savva that the provision of adequate reasons would extend to every decision having to include an explanation of the Council's RAS. That suggestion goes too far. Recipients and their advisers are entitled to know about the RAS but, as the Association's guidance recommends, this can be achieved by publishing the RAS on the Council's website in a user-friendly format.
22. It is submitted on behalf of the Council that, if Mrs Savva wanted an explanation of how her personal budget had been calculated, she would have had every opportunity to seek and receive one after receiving the decision letter in the course of her meetings with her social worker or support broker. I do not accept that that would be sufficient. It is for the Panel to provide or approve the reasons in a document. Any other means of communication would lack the necessary authority and consistency."
The Reasons Challenge
i) that the Defendant has failed to provide an explanation setting out the services required to meet the Claimant's needs, timings and assumed hourly costs, the minimum required by the Court of Appeal in Savva;
ii) the decision-making process has been opaque and has lacked the necessary transparency required both by the common law and by the prioritising need guidance;
iii) there has been no intelligible explanation for the figures provided, the lack of transparency and variation of the figures and explanations for the same figures, which leads to the conclusion that the decision-making process has been arbitrary.
"The Local Authority will provide a higher indicative amount for its clients than the RAS banding when it is of the view that specialist care provision is necessary to meet assessed need, or the RAS banding indicative amount is insufficient to meet assessed need. In [K's] case, the Local Authority has taken into account an independent assessment of need and service provision rather than using a support questionnaire to inform its RAS banding calculation. Notwithstanding this the Local Authority is of the view that £61,000 is insufficient to meet [K's] need for one-to-one support and has therefore based its proposed indicative amount on the anticipated maximum annual cost of the level of specialist one-to-one care necessary to meet [K's] assessed needs (£75,015). The final figure of £84,678 is an amount which the Local Authority believes is sufficient to allow [K] to fully meet his assessed needs including his need for social, leisure and therapeutic activities. We set out the local authority's position in respect of this particular need fully in our letter of 26 February 2010"
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
The Rationality Challenge