Local government: standards regime; disability payment challenge
So, farewell then, the Model Code of Conduct Order 2007. As 6 June saw the long-overdue birth of the (almost) final statutory measures to launch the new and battle-scarred standards regime, on 1 July the ancien standards régime was quietly euthanised - subject to the temporary reprieve of a few of its operational relatives.
The measures in question were the Localism Act 2011 (Commencement No. 6 and Transitional, Savings and Transitory Provisions) Order 2012 (SI 2012 No. 1463 – the CTP order) and the Disclosable Pecuniary Interests Regulations (DPIR) (SI 2012 No. 1464).
Disclosable pecuniary interestsExit, then, the old extensive and combat-tested suite of personal interests (and their souped-up siblings - prejudicial interests: where a member of the public with knowledge of the relevant facts would reasonably regard the interest as so significant that it is likely to prejudice judgement of the public interest). Instead, enter a new collection of ‘disclosable pecuniary interests’ set out in regulation 2 of, and the schedule to, the DPIR.
Breach of the substantive related statutory provisions is a criminal offence attracting a fine of up to level 5 on the standard scale and potential disqualification from membership of a relevant authority for up to five years (provided the director of public prosecutions is inclined to mount a prosecution per section 34(5) of the 2011 act). Leaving aside the well-charted apparent legislative slip in section 30(1) (disclosure of pecuniary interests on taking office), there are considerable differences between these and the old model code interests.
A particular surprise nestling in article 2(h) of the CTP order was the removal of the power to suspend members for the more serious breaches of conduct codes. This has been subject to criticism in many quarters as rendering the regime ‘toothless’. For while most councillors are entirely high-minded and hard-working, the public needs to have confidence that those who stray off the straight and narrow will be subject to appropriate sanction.
The transitional provisions include the power to enable the appointment of an independent person under section 28(7) of the 2011 act who had nevertheless been an independent standards committee member under the old standards regime, despite the barring provisions in section 28(8)(b). However, this only applies to appointments made before 1 July 2013 and to those who were not standards committee members on 1 July 2012.
But in a surprise move on 2 July (the Localism Act 2011 (Commencement No. 6 and Transitional, Savings and Transitory Provisions) (Amendment) Order 2012 SI 2012 No. 1714), the government limited the term of office of independent persons to 1 July 2013 (except for such appointments taking place before 24 July 2012). Hence the ‘almost final’ in my opening paragraph. This order was trailed by parliamentary undersecretary of state Bob Neill MP in his letter to local authority leaders on 28 June. He said that: ‘Given the importance that the new arrangements are, and are clearly perceived to be, a wholly fresh start, we are minded to make further provision so that any former member of a standards committee appointed under the transitional arrangements as an independent person can hold that office only until 30 June 2013.’ Some in local government will sense some self-justificatory vindictiveness in this late measure.
However, appeals from findings of standards committees under regulation 21 of the Standards Committee (England) Regulations 2008 may proceed, despite relevant repeals, as may proceedings before the First-Tier Tribunal or legal proceedings associated with proceedings on a referral or appeal.
There is clearly going to be a patchwork quilt of different conduct codes across the country. Many authorities which are unimpressed by the minimalist indicative offering from the secretary of state will no doubt be topping up the many gaps in the current statutory arrangements with local code provisions. While this is of course entirely consistent with the localism agenda, many will nevertheless question whether important elements of local corporate governance should be left to the hazards of local political circumstance.
Disability payment challengeDespite ‘three significant mistakes’, Cambridgeshire County Council emerged unscathed from the Supreme Court on 31 May.
R (KM) v Cambridgeshire County Council  UKSC 23 concerned a challenge to the council’s determination to pay a profoundly disabled man £85,000 to discharge its duties to him under section 2(1) of the Chronically Sick and Disabled Persons Act 1970, when an independent social worker had estimated a figure of £157,000. The appellant contended that the determination was unlawful - either because of inadequate reasons or irrationality.
The lawSection 29 of the National Assistance Act 1948 enables (and, subject to ministerial direction, requires) authorities to make arrangements for promoting the welfare of those suffering specified or prescribed disabilities. Section 2 of the 1970 act requires relevant authorities to make arrangements under section 29 for a range of matters where they are satisfied that it is necessary to meet the needs of a person having a relevant disability. As the court noted, these matters include: ‘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.’
Lord Wilson (who gave the leading judgment) said that when a local authority is required to consider if it is necessary to meet the needs of a relevantly disabled person for it to make arrangements concerning any of the matters on the service list, it must ask itself the following three questions in three separate stages:
‘(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?’
Statutory guidance reflects these inquiry stages. A fourth potential stage relates to direct payments in accordance with regulations made under the Health and Social Care Act 2001 (SI 2009 No. 1887), namely: ‘(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?’
In considering eligibility at stage (ii), the authority may ask whether the disabled person’s needs can reasonably be met by family, friends, the NHS or other agencies, or indeed the person’s own resources. Local authority resources are also relevant at this stage (following R v Gloucestershire County Council, ex parte Barry  AC 584).
Council approachBecause it would be unduly laborious for an authority to cost each of the services identified at stage (iii) above, many authorities, including Cambridgeshire, adopted a resource allocation system (RAS) whereby the authority ascribes points within a prescribed band to each of the identified eligible needs. However, it is crucial that there is a ‘realistic nexus both between needs and points and between points and costs’ which Cambridgeshire developed through a representative service-user group. For service-users having exceptional requirements, the council developed a second indicative tool (the upper banding calculator – a UBC). The RAS ‘ball-park figure’ and the UBC are then refined (in Cambridgeshire’s case) using a ‘support plan’ process. The eventual figure of £85,000 was made up of £61,000 plus £24,000 through the UBC.
ErrorsAs mentioned, in reaching and communicating the £85,000 computation figure (where it had accepted the eligibility of all the appellant’s presenting needs), the council made three errors. First, while the council did not accept the appellant’s mother’s representations that the family would not offer support, it never indicated this to her and consequently ‘lulled the appellant and the mother into thinking that, for some extraordinary reason, it did accept them’. If the computation figure had been adjusted to acknowledge the reasonable amount of family support, the indicative figure would have been reduced to £46,000.
Second, although the council considered that the needs reassessment undertaken by an independent, jointly instructed social worker was ‘manifestly excessive’ (£157,000), it failed to say so. The court also, incidentally, criticised the independent report for its ‘uncritical endorsement’ of the wishes of the appellant and his mother. The council’s third error was not to explain how the £85,000 had been computed.
OutcomeHowever, the rationality challenge to the council’s decision failed since it was rational for Cambridgeshire to use the RAS and UBC, provided that this was suitably cross-checked. The court indeed noted that any flaw in the computation was likely to have been in the appellant’s favour. As to reasons (which can be ‘achieved with reasonable brevity’), while the court found this issue ‘more arguable’, ultimately in the light of the amplitudinous evidence filed in the proceedings and the consequent ventilation of the issues which left ‘no real doubt about its lawfulness’, Lord Wilson considered that ‘it would be a pointless exercise of discretion to order that it should be quashed so that the appellant’s entitlement might be considered again, perhaps even to his disadvantage’. Relevant authorities will find this case to be a helpful statement of relevant law in this often difficult area.
Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors