QUEEN'S BENCH DIVISION
Birmingham Civil Justice Centre
33 Bull Street
B e f o r e :
(sitting as a High Court Judge)
| The Queen on the Application of H
|- and -
Birmingham City Council
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Christopher Baker and Sam Madge-Wyld instructed by Birmingham City Council Legal Services appeared on behalf of the Defendant.
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"The scope for the review of FASBC will
- Ensure any new proposals take account of the relevant legislation and statutory responsibilities in relation to both service users and carers
- Ensure the stakeholder engagement plan includes orders to reflect all disabled groups, including physical disabilities, learning disabilities and Mental Health service users
- Be overseen by the Directors of service for Younger and Older Adults
- Take account of the lessons learnt from stakeholder experiences of FASBC
- Examine the way that any future scheme is funded and look for innovative solutions in the provision of services
- Identify best practice in the way service user and carer assessments are undertaken
- Scrutinize care assessment and guidance documentation.
- Examine the potential for adapting the Individual Budget Resources Allocation Scheme (RAS) to recognise carer contributions
- Ensure that any proposed solution takes account of the personalisation agenda.
- Study the recommendations in the Revised Fair Access to Care Services guidance and implement them in any proposed solution.
- Report on the findings and make recommendations for a scheme for the future."
"At this point the budget is estimated and not final, and it may increase or decrease depending on what support you want and need and what other funding and resources are available to you. "
- Development of a consultation proposal
- A consultation to inform and gather views
- Collecting views and comments to adjust future model"
"No matter how many priority sub-bands were to be formulated, and the formulations would be far from easy and likely to be contentious, there must always be some basis on which to distinguish between those within the same sub-band who are in competition for the same dwelling."
"The unfortunate fact of the matter is that where a Council is faced, as this appellant Council is faced, with a demand for Council housing that greatly exceeds the available housing stock, there is no allocation system that can be devised to avoid hard cases such as, undoubtedly, Mr Ahmad and his family present."
MR BROACH : Well my Lord I am grateful for that. We understand the demands on the judiciary and your Lordship's time ...
JUDGE PURLE : I realise there was another council meeting in November which I dare say was wondering what's going on.
MR BROACH : My Lord. I am grateful for that and if I may my Lord I will just address you very briefly on permission to appeal. It's never an attractive task.
JUDGE PURLE : It is an even more daunting task when its delivered orally
MR BROACH : Well, indeed, my Lord but your Lordship's judgment was very clear and I am sure I have the gist of it. My Lord really just three points if I may in terms of why we would say that the matter should go to the court of appeal. Firstly that the point which your Lordship quite rightly stated that the real issue here is about the context of the consultation, the nature of the consultation, and we would say that the Court of Appeal may take a different view as to whether the consultation was in fact about outcomes or should have been and even if it was in that process whether process required more information to be gives. Secondly, the moderation which again your Lordship identified as being so central our question would be moderation in relation to what, as this scheme doesn't provide for any community care assessment within (inaudible) self-assessment which of course the Court of Appeal has said in Savva isn't acceptable. It does have to be community care assessments so we would say that moderation doesn't cure the (inaudible) defect. And finally on the DDA points, again an issue of whether it's substance or process we would say the defendant hasn't addressed the substance of the needs and has instead looked at access to the scheme alone. So my Lord those are the three points in which we would say that permission to appeal be granted.
JUDGE PURLE : Yes, OK.
MR MADGE-WYLD: Yes, my Lord. In relation to the first point the defendant council would say that was abundantly clear from the review and this was your Lordship's reason what the purpose the consultation was and it was for the council to decide how it consulted and it duly did decide and for the reasons you gave and my Lord I would say that that ground of appeal should not succeed and you should not give permission on that basis. On the second point the moderation process we would say is a community care assessment, that is where there is an assessment that needs undertaking by ...
JUDGE PURLE : (inaudible). That's what I understood it to be.
MR MADGE-WYLD: That's what we say in relation to that.
JUDGE PURLE : (inaudible)
MR MADGE-WYLD : And then in relation to the Disability Discrimination Act Section 49 A there have been various equality impact needs and assessment reports where the council did deal with substance and vigour the equality duties for the reason you gave my Lord, so that is what I would say
JUDGE PURLE : Well, I think it must be for the Court of Appeal to decide whether to grant permission. They can decide whether there is a realistic chance of success
MR BROACH : Yes, my Lord.
JUDGE PURLE : And I bear in mind that this is not the end of the day for you. You can go through the process and if anything goes wrong with it you can come back if it is not applied fairly. That is why I directed myself at the beginning that I had to leave out of account the truly harrowing circumstances of the class of people who you represent
MR BROACH: Yes, my Lord
JUDGE PURLE : Thank you very much
MR BROACH : My Lord, might I raise one other procedural matter? Could we have a direction for there to be a transcript of today's judgment prepared by the court?
JUDGE PURLE : Yes. Are you funded by (inaudible)
MR BROACH: (inaudible
JUDGE: There's no objection to that is there?
MR MADGE-WYLD : No, but for what it's worth we would ask for our costs subject to a detailed assessment.
JUDGE PURLE : Right you cannot resist it with the usual limitation can you?
MR BROACH : Well only to the extent that the court perhaps may not wish to make a futile order my Lord because there is absolutely no way in which my client would be in a position to pay costs so other than that…
JUDGE PURLE : We might buy him a lottery ticket for Christmas. In that case what I ask you both to do is to do an order please between you because I cannot remember what the football pools order is. It's changed since I drafted it.
MR BROACH: Indeed my Lord, we have forms of words. I am sure we can do that
JUDGE PURLE : The order is very simple. You need a form don't you? I have one in my room. If you just hang on I will go and fill it out.
MR BROACH : If it's easier, my Lord, we can e-mail your Lordship's clerk and sort it out.
JUDGE PURLE : Yes it's just the form I have to fill in when refusing permission to appeal
MR BROACH: Yes, my Lord
JUDGE PURLE : You cannot (inaudible) by that ...
MR BROACH : I certainly can't my Lord no.
JUDGE PURLE : Certainly the order needs to be done now but if you want to wait for the form I will hand that over to you today.