R. (on the application of KM) v Cambridgeshire CC, 2012 WL 1933390 (2012)

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Summary
The Supreme Court set out a staged approach to be adopted by local authorities when considering whether it was necessary, in order to meet the needs of a disabled person, to make arrangements for the provision of services specified in the Chronically Sick and Disabled Persons Act 1970 s.2(1) and the reasonable cost of providing those services.

Abstract The appellant (M) appealed against a decision ([2011] EWCA Civ 682), (2011) 14 C.C.L.Rep 402) that the respondent local authority (C) had lawfully assessed the amount of a direct payment awarded to him in respect of his care needs.

M was a profoundly disabled man, aged 26, who lived with his mother, brother and sister. He had been born without eyes, and suffered from other physical and mental difficulties. He required help in feeding and caring for himself. Under the Chronically Sick and Disabled Persons Act 1970 s.2(1), C had a duty to make arrangements for M's care, including the provision of specified services for him. The Community Care, Services for Carers and Children's Services (Direct Payments) (England) Regulations 2009 allowed local authorities to discharge their obligations by making a direct payment to the service-user so that they could themselves decide how to spend it. C had exercised that power and made an offer to M which he rejected. An independent social worker assessed M's needs in the sum of £157,000. C made a final offer of approximately £85,000, but failed to explain how the sum had been calculated.

M contended that C's assessment was irrational and/or unlawful as it lacked adequate reasoning, and he should have been paid £120,000.

Held Appeal dismissed.

(1) When a local authority was required to consider whether it was necessary, in order to meet the needs of a disabled person, to make arrangements for the provision of any of the matters specified in s.2(1) of the 1970 Act, it should do so in three separate stages. First, it should consider what were the needs of the disabled person. Second, in order to meet those identified needs, it should consider whether it was necessary to make arrangements for the provision of any of the specified services. Third, if the answer to the second stage was affirmative, it should consider the nature and extent of those services. There was also a fourth potential stage of inquiry. In cases where the disabled person qualified for a direct payment under the 2009 Regulations, the local authority was required to consider what was the reasonable cost of securing provision of the services identified at stage three (see paras 15, 23 of judgment). (2) One important aspect of the question raised at the second stage was to ask whether the needs of the disabled person could reasonably be met by family or friends, by other organs of the state, or out of the person's own resources. The question at the second stage encompassed consideration of the relationship between the scale of the local authority's resources and the weight of other demands upon it, in other words, the availability of its resources, R. v Gloucestershire CC Ex p. Barry [1997] A.C. 584, [1997] 3 WLUK 469 considered. That was also stated in the secretary of state's current guidance, entitled "Prioritising need in the context of putting people first: A whole system approach to eligibility for social care", dated February 2010. That guidance was therefore precisely in accordance with the law. However, C had not relied upon resource constraints in reaching its decision (paras 19, 45-47). (3) For the purpose of the fourth stage, costing each of the requisite services upon a blank sheet of paper would be unacceptably laborious and expensive. Many local authorities therefore used a mechanism known as a "resource allocation system" (RAS) which ascribed points to each eligible need, and an annual sum to the total points. C had also used a second indicative tool, called an "upper banding calculator" (UBC), which reflected factors elevating the requisite level of services and ascribed an additional sum. What was crucial was that once the indicative sum had been identified, the requisite services in each case should be costed in a reasonable degree of detail so that a judgement could be made as to whether the indicative sum was too high, too low or about right. It had been rational for C to use the RAS and UBC provided that the result was cross-checked. M's rationality challenge therefore failed (paras 24-28, 38). (4) C should have made a more detailed presentation to M of how he might reasonably choose to deploy the offered sum, and of its own assessment of the reasonable cost of carers. It had failed to provide a timely explanation, and a belated explanation had not repaired that deficit. However, it appeared that C's calculations had proceeded on the false premise that M would receive

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2 R. (on the application of KM) v Cambridgeshire CC, 2012 WL 1933390 (2012)

no support from his family. Any flaw in C's computation was likely to have been in his favour. Further, the independent social worker had uncritically endorsed the wishes of M in his report, which had led M to believe that he had a higher entitlement. It would be a pointless exercise of discretion to quash C's assessment so that M's entitlement might be considered again, perhaps to his disadvantage, R. (on the application of L) v Leeds City Council [2010] EWHC 3324 (Admin), [2010] 11 WLUK 361 approved and R. (on the application of Savva) v Kensington and Chelsea RLBC [2010] EWCA Civ 1209, [2011] P.T.S.R. 761, [2010] 10 WLUK 704 applied (paras 36, 38-39).

 


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