QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
sitting as a Deputy High Court Judge
| The Queen on the application of RAFAELA SAVVA
|- and -
|ROYAL BOROUGH OF KENSINGTON AND CHELSEA
Ms Sarah Sackman (instructed by Legal Services, Royal Borough of Kensington and Chelsea) for the Defendant
Hearing dates: 17th and 18th February 2010
Crown Copyright ©
His Honour Judge David Pearl sitting as a Deputy High Court Judge:
"A clear and rational way to calculate how much money a person is likely to need to arrange support. This helps the person understand how the amount of money has been arrived at, and to make choices and direct the way their support is provided."
"The RAS tool is a mathematical tool which has been promoted by the DH and adapted for use by the Council. The rationale behind the tool is to ensure objective consistent needs-based decision making in the context of community care. The RAS tool is designed to help the Panel in its analysis. It generates an indicative budget only."
"Mrs Savva states she can only eat fresh products due to her heart condition and diabetes. She reports that she has always eaten fresh food and it is very important to her to be able to maintain this. She prefers to eat food such as fresh fish, meat, vegetables and fruit. She feels that for this reason she needs shopping to be done on a regular basis. Mrs Savva would prefer shopping to be done on a daily basis."
"analysing the claimant's needs in the round, the panel considered that the 'indicative budget' of £142.02p per week was too low and did not properly meet the Claimant's needs particularly in terms of meal preparation. Therefore, the panel increased the indicative figure and allocated a weekly budget of £170.45 to the Claimant."
The grounds for challenge
(i) The Defendant's system for calculating budgets is inadequate to discharge the statutory duty to provide care services adequate to meet an individual's assessed needs;
(ii) The Defendant's reasons were inadequate to discharge the duty to provide adequate reasons for the decision to allocate the Claimant a personal budget of £170.45p per week;
(iii) The Defendant assessed the Claimant's needs to have increased substantially between July 2009 and December 2009, yet decided to keep the personal budget constant, at £170.45p per week. It is submitted that, in the absence of a proper explanation, this is irrational.
The Defendant's system for calculating budgets is inadequate to discharge the statutory duty to provide care services adequate to meet an individual's assessed needs.
"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 all or any of the following matters, namely….
[provision of certain types of assistance]
Then…it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29".
"...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."
"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."
"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".
The Defendant's reasons were inadequate to discharge the duty to provide adequate reasons for the decision to allocate the Claimant a personal budget of £170.45p per week
"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..."
"The Council being aware of its ongoing relationship with a duty to provide care to Mrs Savva wanted to demonstrate that it valued her perception of her care needs which was reflected in this generous personal budget."
"In some areas of the law that might be an adequate response, where those affected can be assumed to be capable of looking after their own interests, and where silence in response to an offer can be treated as acceptance or acquiescence. However, that approach is not valid in the present context. The obligation to make an assessment for community care services does not depend on a request, but on the appearance of 'need.'"
"...if this statutory guidance is to be departed from it must be with good reason, articulated in the course of some identifiable decision-making process..."
"it is one thing to require comprehensiveness and clarity from lawyers and those who regularly sit on administrative tribunals; it is another to require those qualities of occasional non-lawyer tribunal chairmen and members"
The Defendant assessed the Claimant's needs to have increased substantially between July 2009 and December 2009, yet decided to keep the personal budget constant, at £170.45p per week. It is submitted that, in the absence of a proper explanation, this is irrational.
Article 6 submissions
(i) It is accepted that the determination by the social worker of whether the Claimant was eligible for support did not fall within the ambit of Article 6;
(ii) However, once the social worker had assessed the Claimant in this case to have eligible needs, the Defendant had an absolute duty to provide funding for services. At this point, the Claimant became the holder of an individual right to a personal budget (i.e. a monetary payment) from the Defendant;
(iii) It then fell to the Panel to determine the amount of the monetary payment; and this is to be distinguished from A v Croydon  1 WLR 2557, which concerned a benefit in kind. In determining the amount of payment, the Panel were determining a "civil right" within the meaning of Article 6;
(iv) Article 6 guarantees a duty to provide adequate reasons for the decision: e.g. Hirvisaari v Finland (2004) 38 EHRR 7;
(v) In the case of the Defendant's RAS, the ordinary judicial review procedures would be sufficient to render the process compliant with Article 6, but only if the Administrative Court has access to the reasons of the Panel.
"The judicialisation of dispute procedures, as guaranteed by article 6(1), is eminently appropriate in the realm of relations between individuals but not necessarily so in the administrative sphere, where organisational, social and economic considerations may legitimately warrant dispute procedures of a less judicial and formal kind."
"…prepared… to hold that cases where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder, but is dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met, do not engage article 6(1)".
(i) the Panel is under a duty to provide reasons for its decision dated 21st December 2009, which are adequate to show that it is satisfied, reasonably, that the allocated budget is sufficient to meet the individual's assessed needs;
(ii) as no reasons are given, there be an order quashing the Panel's decision of 21st December 2009;
(iii) there be an order that the Panel reconsider the Claimant's personal budget, and provide reasons for its decision.