Services for sick and disabled persons - Assessment of needs of sick and disabled persons - Direct payments
R (on the application of KM) (by his mother and litigation friend) v Cambridgeshire County Council: Supreme Court (Lords Phillips, Walker, Brown, Kerr, Dyson and Wilson, Lady Hale): 31 May 2012
By section 29(1) of the National Assistance Act 1948 (the 1948 act), a local authority was obliged to make arrangements for promoting the welfare of adults ordinarily resident in their area who were substantially and permanently handicapped by illness, injury, or congenital deformity or by other prescribed disabilities. The effect of section 2 of the Chronically Sick and Disabled Persons Act 1970 (the 1970 act) was that, if it was necessary in order to meet the needs of a person disabled within the meaning of section 29 of the 1948 act to make arrangements for any of the matters set out in the service list contained in section 2, then, subject to guidance given by the secretary of state pursuant to statute, the local authority had a duty to make them in exercise of its functions under section 29 of the 1948 act.
In the instant case, the claimant, aged 26, was profoundly disabled. As a consequence of his physical and mental disabilities he required substantial support in feeding, self-care and daily living and also required a guide when outside the home. The claimant lived within the defendant local authority's boundary area with his mother and two adult siblings. The authority assessed the claimant's presenting needs as critical in accordance with section 47 of the National Health Service and Community Care Act 1990 and therefore eligible under section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 for the provision, by the authority, of services in accordance with section 2 of the 1970 act.
In order to identify the nature and extent of the requisite services, an officer of the authority, with the co-operation of the claimant's mother, completed a 'support questionnaire'. At that time, the mother was in receipt of an annual carer's allowance of £5,000 to enable her to purchase limited respite care. The mother caused the officer to record, in relation to all areas of need identified in the questionnaire, that the unpaid support offered by the family was 'none'. That ran contrary to the fact that she was, at that time, providing a very substantial level of care to the claimant. In making its resource allocation system (RAS) and upper banding calculator (UBC) calculations, the authority made no allowance for support that could reasonably be met by family and friends (natural support).
The total allowance for RAS and UBC was £67,000, with the RAS having achieved the highest possible allowance of £61,000. Had allowance been made for a reasonable level of future support by the mother, the RAS figure would have been £15,000 lower with no UBC addition. The claimant rejected that offer. A detailed assessment of the claimant's needs, conducted by an independent jointly-instructed expert (C), resulted in a classification of 'critical' in all areas. Having established the claimant's needs and eligibility for the provision of services, C was then instructed to address the nature and extent and the cost of the services requisite for the meeting of the claimant's needs.
That report presented what the claimant and his mother wanted in terms of paid for care, and different activities in which the claimant might engage, with total costings of £157,000. C's report did not suggest that that level of care was necessary or why that was so. No account was taken of a lesser level of paid for care to take into account time the claimant would spend at the suggested activities. The costings also took into account two two-week holidays each year for the claimant, his mother and a paid carer. The authority, although critical of C's report and its costings, did not state that it considered the services and costs to be manifestly excessive.
The authority, on the footing that no natural support was available to the claimant, re-conducted its RAS calculation which produced a maximum of £61,000. Its UBC calculation, based on the premise that there should be an uplift referable to the cost of paid care for the claimant in the amount suggested by C, was £24,000. Accordingly, the authority offered the claimant £85,000. The offer letter did not explain how that sum had been calculated. Following mediation, the authority did provide a full explanation. The claimant sought judicial review of the authority's decision to pay him £85,000 in discharge of its duties to him under section 2(1) of the 1970 act. The claim was heard by the Court of Appeal, which dismissed the claim. The claimant appealed.
He submitted that the authority's determination to offer him £85,000 had been either: (i) unlawful because it was not adequately supported by reasons; or (ii) irrational. Consideration was given to the then current guidance Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care as published in February 2010 (the guidance) and to regulations 7(1)(c), 7(2) and 9(1) of the Community Care, Services for Carers and Children's Services (Direct Payments) (England) Regulations 2009 (the Regulations), SI 2009/1887. The appeal would be dismissed.
When a local authority was required to consider whether it was necessary in order to meet the needs of a person for that authority to make arrangements for the provision of any of the matters listed in section 2 of the 1970 act, it was required to ask itself the following questions and should do that in three separate stages: (i) what were the needs of the disabled person; (ii) in order to meet those identified needs, whether it was necessary for the authority to make arrangements for the provision of any of the listed services; and if the answer to (ii) was affirmative; (iii) what was the nature and extent of the listed services for the provision of which it was necessary for the authority to make arrangements.
The guidance fitted perfectly with those three stages. An important aspect of the question raised at the second stage was to ask whether the presenting needs of the disabled person could reasonably be met by natural support, or by other organs of the state, or by charities, or by the person's own resources. However, the question went further and, in particular, encompassed consideration of the relationship between the scale of the authority's resources and the weight of other demands upon it, namely the availability of its resources. The guidance, which stated that the availability of resources was relevant to the question asked at the second stage of the inquiry, was precisely in accordance with the law.
There was, potentially, a fourth stage of the inquiry process once an authority was satisfied that the person's need for the relevant service could be met by securing the provision of it by means of a direct payment under the Regulations, the authority was, in many cases, under a duty, with that person's consent, to make such a payment in an amount which equated to the reasonable cost of securing the provision. The relevant question then was: (iv) what was the reasonable cost of securing provision of the services which had been identified at (iii) as being those for the provision of which it was necessary for the authority to make arrangements (see , ,  of the judgment).
Notwithstanding that there had been deficits in the reasoning of the Court of Appeal, it had been correct in its conclusion that the claimant's application would be dismissed. It had been rational for the authority to have used the RAS and the UBC provided that the result had been cross-checked which, on the evidence, it had. The false premises behind the RAS and UBC calculations generated a provisional conclusion that any flaw in the computation was likely to have been in the claimant's favour.
In the light of the conflict as to the sufficiency of the authority's offer, it should have made a more detailed presentation to the claimant of how, in its opinion, he might reasonably have chosen to deploy the offered sum than it had. In particular, it should have made a presentation of its own assessment of the reasonable cost of the principal item of the claimant's future expenditure, namely the cost of carers. Its belated explanation, following mediation, had not repaired that deficit.
However, in the light of the evidence presented in response to the application for judicial review, there was no real doubt about the lawfulness of the authority's decision and it would be a pointless exercise of discretion to order that it be quashed so that the claimant's entitlement might be reconsidered, perhaps to his disadvantage (see , ,  of the judgment). R v Gloucestershire County Council, ex p Barry  2 All ER 1 considered; R (on the application of W) v Birmingham City Council 120 BMLR 134 considered; R (on the application of McDonald) v Royal Borough of Kensington and Chelsea  4 All ER 881 considered; R (on the application of Savva) v Royal Borough of Kensington and Chelsea  LGR 150 considered. Decision of Court of Appeal  All ER (D) 46 (Jun) affirmed.
Ian Wise QC, Stephen Broach, Ben Silverstone (instructed by Scott-Moncrieff & Associates LLP) for the claimant. J Richard McManus QC, Jonathan Auburn, Benjamin Tankel (instructed by Cambridgeshire County Council Legal Services) for the authority. Richard Gordon QC and Victoria Wakefield (instructed by Irwin Mitchell LLP) for the National Autistic Society, the Guide Dogs for the Blind Association, SENSE and the Royal National Institute of Blind People as interveners. Nathalie Lieven QC and Tim Buley (instructed by the Department of Work and Pensions/Department of Health Legal Services) for the Secretary of State for Health as intervener.