UKSC 23
On appeal from:  EWCA Civ 682
R (on the application of KM) (by his mother and litigation friend JM) (FC) (Appellant) v Cambridgeshire County Council (Respondent)
Lord Phillips, President
JUDGMENT GIVEN ON
31 May 2012
Heard on 7 and 8 February 2012
Ian Wise QC
(Instructed by Scott-Moncrieff & Associates LLP)
J Richard McManus QC
Jonathan Auburn Benjamin Tankel
(Instructed by Cambridgeshire County Council Legal Services)
|Interveners (The National Autistic Society; The Guide Dogs for the Blind Association; SENSE; The Royal National Institute of Blind People)
Richard Gordon QC
(Instructed by Irwin Mitchell LLP)
|Intervener (Secretary of State for Health)
Nathalie Lieven QC
(Instructed by DWP/DH Legal Services)
LORD WILSON (WITH WHOM LORD PHILLIPS, LORD WALKER, LORD BROWN, LORD KERR AND LORD DYSON AGREE)
"(a) the local authority, whose funds are not limitless, are both entitled and obliged to moderate the assessed needs to take account of the relative severity of all those with community care needs in their area..."
B: THE APPELLANT'S CIRCUMSTANCES
C: THE DUTY UNDER SECTION 2 OF THE 1970 ACT
"(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 blind, deaf or dumb, or who suffer from mental disorder of any description and other persons who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister. "
Subsection (4) of the section gives examples of the arrangements which the authority might make under subsection (1). In the event the Secretary of State has given wide-ranging approvals, but relatively limited directions, pursuant to subsection (1): see Appendix 2 to the Local Authority Circular issued by the Department of Health numbered LAC (93) 10. The result is that, had it not been for further legislation, the authority's functions under the section would largely have consisted only of powers rather than of duties.
"(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 all or any of the following matters, namely –
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)... it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29."
The list of matters set out at (a) to (h) of the subsection is often described as the service list. It includes the provision, at (a), of practical assistance in the home; at (b), of radio, television, library and other recreational (presumably now including computer) facilities; at (c), of lectures, games, outings or other recreational facilities outside the home; at (d), of facilities for travel for specified purposes; at (e), of assistance in carrying out works of adaptation in the home; at (f), of facilities enabling holidays to be taken; at (g), of meals; and at (h), of a telephone.
(i) What are the needs of the disabled person?
(ii) In order to meet the needs identified at (i), is it necessary for the authority to make arrangements for the provision of any of the listed services?
(iii) If the answer to question (ii) is affirmative, what are the nature and extent of the listed services for the provision of which it is necessary for the authority to make arrangements?
There is a fourth potential stage of the inquiry which I will identify in para 23 below.
"In this guidance, the issues and support needs that are identified when individuals approach, or are referred to, councils seeking social care support are defined as "presenting needs". Those presenting needs for which a council will provide help because they fall within the council's eligibility criteria, are defined as "eligible needs". Eligibility criteria therefore describe the full range of eligible needs that will be met by councils, taking their resources into account."
Transposed into the context of section 2 of the 1970 Act, the reference in the Guidance to "presenting needs" is a reference to the needs identified in answering the question at the first stage. Transposed into the same context, the reference to "eligible needs" is a reference to the needs for the meeting of which there is the necessity identified in answering the question at the second stage, namely the necessity for the local authority to make arrangements for the provision of any of the services listed in section 2.
"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."
(iv) What is the reasonable cost of securing provision of the services which have been identified at (iii) as being those for the provision of which it is necessary for the authority to make arrangements?
D: CAMBRIDGESHIRE'S COMPUTATION OF £85k
"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... 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."
The appellant does indeed require more complicated arrangements than did Mrs Savva. Even in a more complicated case, however, it may be enough for the authority, as here, to attribute a compendious cost to a group of requisite services of similar character, particularly if there are reasons for concluding that general assumptions have been made which, if reflective of error, would reflect error in the service-user's favour.