B, R (on the application of) v Cornwall County Council & Anor [2009] EWHC 491 (Admin)

Case No CO/11445/2008[2009] EWHC 491 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 March 2009
Before
THE HONOURABLE MR JUSTICE HICKINBOTTOM
Between
THE QUEENClaimantON THE APPLICATION OF BClaimantCORNWALL COUNTY COUNCILDefendantTHE BRANDON TRUSTInterested Party
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Philip Coppel (instructed by Follett Stock) for ClaimantDr Nick Armstrong (instructed by County Legal Services) for DefendantHearing Hearing date: 25 February 2009
JudgmentMr Justice HickinbottomIntroduction
[1]The Claimant, “B”, is a 48 year old man with a moderate learning disability, who presents with challenging behaviour. Since 1993, he has lived in supported living accommodation in Newquay, Cornwall, with three other residents with learning disabilities. I shall refer to that accommodation as “C”. B is close to his parents (“Mr & Mrs B”), whom he visits almost every weekend for three nights: and they are actively interested in his welfare at C. In view of B’s disability, they are involved in most decisions affecting B’s care. Mrs B is B’s appointee, and manages his income.[2]Despite a change in the provider of care for the residents of C in January 2008 (from the Cornwall Partnership NHS Trust to the Defendant local authority (“the Authority”)), until August 2008 B was not required to make any contribution towards the costs of his care at C. However, by a letter dated 8 August 2008, the Authority advised B that it had assessed his liability to contribute and, after a transitional period during which he would pay nothing until October 2008 and only £30 thereafter until October 2009, he would be charged £68.50 per week by way of contribution.[3]It is that decision, to increase his contribution from nil to £68.50 per week that B challenges in this claim.

Legal Framework and Guidance

[4]Section 17 of the Health and Social Services and Social Security Adjudications Act 1983 (“the 1983 Act”) gives local authorities power to charge for services they provide, as follows: “(1) Subject to sub-section (3) below, an authority providing a service to which this section applies may recover such charge (if any) for it as they consider reasonable. (2) … (3) If a person(a) avails himself of a service to which this section applies, and(b) satisfies the authority providing the service that his means are insufficient for it to be reasonably practicable for him to pay for the service the amount which he would otherwise be obliged to pay for it, the authority shall not require him to pay more for it than it appears to them that it is reasonably practicable for him to pay ….” (a) avails himself of a service to which this section applies, and (b) satisfies the authority providing the service that his means are insufficient for it to be reasonably practicable for him to pay for the service the amount which he would otherwise be obliged to pay for it, In short, an authority has a power (but not a duty) to levy a charge for services they provide, so long as the charge is reasonable and the service user has means to pay. It is common ground that the relevant services provided by the Authority to B fall within the provisions of Section 17.[5]That charging power is subject to Section 7(1) of the Local Authority Social Services Act 1970 (“the 1970 Act”), which provides that:
“A local authority shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.” 6. The Secretary of State has given guidance under this section in respect of charging policies for non-residential social services, to which I shall return (see paragraph 13 below). The obligation of an authority to “act under” guidance was described by Sedley LJ (as he then was) in R v Islington London Borough Council ex parte Rixon (1998) 1 CCLR 119 at page 123, as having the following effect: “In my judgment Parliament in enacting Section 7(1) did not intend local authorities to whom ministerial guidance was given to be free, having considered it, to take it or leave it. Such a construction would put this kind of statutory guidance on a par with the many forms of non-statutory guidance issued by departments of state…. Parliament by Section 7(1) has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but with freedom to take a substantially different course.”
That approach to such guidance was approved by the Court of Appeal in Lambeth London Borough Council v Ireneschild [2007] EWCA Civ 234.[6]In relation to community care services, the objectives of the legislative scheme are broad and enabling. It has been said, with justification, that: “The promotion of independent living is a core - perhaps the core - principle underpinning the community care legislation” (“Community Care and the Law”, Clements & Thompson, The Tollett Group, 2007 (4th Edition), at Paragraph 4.44). That purpose is also emphasised in the guidance the Secretary of State has issued under Section 7 of the 1970 Act, “Fairer Charging Policies for Home Care and Other Non-residential Social Services” (Department of Health, September 2003) (“the 2003 Guidance”), where the overall objectives are said to be “to promote the independence and social inclusion of service users” (Paragraph 3: and see also Paragraph 15 to the same effect).[7]In relation to such services, a responsible local authority is required to make an assessment of a disabled person’s needs, then decide what (if any) services they will provide to fulfil any of those needs, and finally determine what charge can and should be levied from the service user (if any). It can therefore be viewed as a three-stage process, although there is considerable interplay between those stages. “In relation to assessment of needs, Section 47 of the National Health Service and Community Care Act 1990 (“the 1990 Act”) provides as follows:” “(1) … [W]here 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. (2) If at any time during the assessment of the needs of any person under sub-section (1)(a) above it appears to a local authority that he is a disabled person, the authority (a) shall proceed to make such a decision as to the services he requires as mentioned in Section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section; and (b) shall inform him that they will be doing so and of his rights under that Act. (3) … (4) The Secretary of State may give directions as to the manner in which an assessment under this section is to be carried out or the form it is to take but … it shall be carried out in such manner and take such form as the local authority consider appropriate ….” (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. (a) shall proceed to make such a decision as to the services he requires as mentioned in Section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section; and (b) shall inform him that they will be doing so and of his rights under that Act.[9]The Secretary of State has given directions under Section 47(4), namely the Community Care Assessment Directions 2004 which, in Paragraph 2, provide:
“(1) In assessing the needs of a person under Section 47(1) of the Act a local authority must comply with Paragraphs (2) to (4). (2) The local authority must consult the person, consider whether the person has any carers and, where they think it appropriate, consult those carers. (3) The local authority must take all reasonable steps to reach agreement with the person and, where they think it appropriate, any carers of that person, on the Community Care Services which they are considering providing to him to meet his needs. (4) The local authority must provide information to the person and, where they think it appropriate, any carers of that person, about the amount of the payment (if any) which the person will be liable to make in respect of the Community Care Services which they are considering providing to him.”
These directions set a pattern for the general scheme of community care. Decision-making rests in the responsible authority, but their powers are only to be exercised after appropriate engagement with the service user and any relevant carers (who may include for example the service user’s parents or other family). Prior to coming to a concluded view on needs, they should consult: prior to coming to a decision on steps to be taken to meet that need, they should attempt to reach agreement: and in relation to the on-cost to the service user, they should provide appropriate information.[8]I was referred to substantial guidance issued by the Secretary of State in a number of documents both with regard to an authority’s assessment of a person’s needs under Section 47 of the 1990 Act, and in respect of charging for non-residential community care services provided by an authority.[9]In respect of the former, I was referred to the helpful and (I understand) uncontentious summary of the disparate guidance provisions in Chapter 4 of Clements & Thompson, to which I have already referred. That again emphasises the need for engagement and interaction between the assessing/providing authority on the one hand, and the service user and any relevant carers on the other. For example, “Community Care in the Next Decade and Beyond: Policy Guidance” (HMSO, 1990) at Paragraph 3.24 requires that:
“Once needs have been assessed, the services to be provided or arranged and the objectives of any intervention should be agreed in the form of a care plan.” 12. And, at Paragraph 3.26: “Decisions on service provision should include clear agreement about what is going to be done, by whom and when, with clearly identified points of access to each of the relevant agencies for the service user, carers and for the care manager.”
That is reflected in the more recent policy guidance “Fair Access to Care” (HMSO, 2002) at Paragraph 47 which is guidance on the single assessment process directed at older people’s care needs: but, as the learned authors say, it provides “a useful check list for the categories of information that [care] plans should contain” generally. That checklist includes an indication of whether the service user or relevant carers have agreed the care plan and, if not, why agreement was not possible.[10]The importance of the care plan is stressed by Clements & Thompson. Whilst there is no statutory reference to “care plans”, “they are essential to the community care process and the subject of detailed policy and planning guidance” (Paragraph 4.2). In Rixon (at page 128), Sedley J accepted that “a care plan is nothing more than a clerical record of what has been decided and what is planned”, but he went on to say that this:
“… far from marginalising the care plan, places it at the centre of any scrutiny of the local authority’s due discharge of its functions. As Paragraph 3.24 of the [1990] policy guidance indicates, a care plan is the means by which the local authority assembles relevant information and applies it to the statutory ends, and hence affords good evidence to any inquirer of the due discharge of its statutory duties. It cannot, however, be quashed as if it were a self-implementing document”
Sedley J there identifies one important purpose of a care plan, namely the application of the statutory objectives to a particular case on the basis of the information the authority have gathered. It therefore comes as no surprise that the guidance as to content of the care plan in “Care Management and Assessment - A Practitioner’s Guide” (HMSO, 1991) is that it should include not only objectives, but also the services to be provided and by whom, other options considered, the cost to the service user, any points of difference between the service user, carer, care planning practitioner and any agency, and any unmet needs. The care plan provides the link between objectives, through the identification of needs and services that are to be provided to satisfy or alleviate those needs, to the cost to the service user.[11]In respect of on-charging to the service user, I was taken to the relevant guidance (the 2003 Guidance) at some length. Some of the main points which arise from it appear to me to be as follows (the paragraph references being those of the 2003 Guidance):(i) Councils have power to charge for community care services. There is no duty to charge, or even any presumption that there will be charging.(ii) Where an authority does charge, they retain a substantial discretion in the design of the charging policy.(iii) In setting any charge, the authority should have regard to the effect of any charge on a user’s net income, which should not be reduced below the level of income support plus 25%. Disability benefits need not be taken into account as income at all. However, where they are taken into account as income in assessing the ability to pay a charge, an authority should assess disability-related expenditure (“DRE”) which, with allowances, has to be set off against income to ascertain available income against which any charge may be levied. Assessment of DRE has to be done on an individual basis:
“It is not acceptable to make a charge on disability benefits without assessing the reasonableness of doing so for each user”
. For this reason (and because users including relevant carers will very often need personal help and advice on how to claim), “Assessments involving [DRE] should … normally be carried out by personal interview in the user’s own home” (Paragraph 45). It is understandably stressed throughout the guidance that the fact that assessment of needs, the appropriate steps to fulfil those needs and what might be DRE are all matters quintessentially individual to a specific service user. (iv). Charging policies should be demonstrably fair as between different service users. (v) Authorities need to ensure that: “The overall objectives of social care, to promote the independence and social inclusion of service users, are not undermined by poorly designed charging policies” (Paragraph 3). “The approach should support self-assessment by the user as much as possible, taking a holistic view of the user’s finances and personal needs, both to support the user’s own independence of living and to ensure that any charge assessed is reasonable” (Paragraph 45). Therefore, whilst decisions as to what might be a care need, and the services that might be provided to meet that need, are for the responsible authority, the service user’s own assessment is an important factor to be taken into account. Again, this highlights the requirement for engagement between the authority and the service user and any carers. (vi) The user’s care plan will normally be a guide to what is necessary for care and support, although some discretion may be needed. Given that the care plan is intended to set out the service user’s community care needs and how they are to be addressed, that is clearly a good starting point. (vii) Given that it is impossible to give a comprehensive list of DRE, authorities have to develop local policies consistent with the statutory guidance. “The overall aim should be to allow for reasonable expenditure needed for independent living by the disabled person. Items where the user has little or no choice other than to incur the expenditure, in order to maintain independence of life, should normally be allowed” (Paragraph 44). That is a matter to which I shall return. (viii) The authority may request evidence of actual expenditure, to verify that items claimed for have actually been purchased (Paragraph 50). (ix) “The Government expects all Councils to explain how these issues will be addressed as part of consultation with users and carers on their charging policies.” (Paragraph 80(xi)). The importance of consultation with users and carers about charging policies and increases or changes in charges is stressed as “one of the main principles” (Paragraph 98). “Where changes in charging policies would result in significant increases in charge for some users, this should be specifically explained and considered as part of a consultation” (Paragraph 99). (x) The importance of authorities getting key processes right is stressed, if the development of policies is to be well-informed and local users are to understand and accept charging policies (Paragraph 94). Clear information about charging and how they are assessed should be readily available for users and carers (Paragraph 95). And, once a person’s care needs have been assessed and a decision has been made about the care to be provided, assessment of ability to pay should be made promptly and written information about the charges and how they have been calculated should be communicated promptly (Paragraph 96). (xii) Finally, the information for those liable for charges should make clear that they make seek a review of the assessed charge, or make a formal complaint if they are dissatisfied with any aspect of the assessment (Paragraph 102).[12]In accordance with the national guidance (see Paragraph 13(vii) above), the Authority issued its own guidance in relation to DRE under three heads, “Evidence”, “Process” and “Reasonable Disability Related Expenditure”. Subject to what I say below, this guidance was in place at the time of the two relevant assessments (May and July/August 2008) and remains in place.[13]The guidance (of which, as I understand it, B and Mr & Mrs B were not aware at the relevant time) does not aim to be comprehensive. In relation to evidence, it suggests that, where possible, receipts should be seen and recorded. Otherwise, Finance Officers who conduct assessments are told:
“Make a note if evidence is unavailable and ask the service user to provide it at the next review.”
In respect of reasonable DRE, under the heading “Private Care”, it is said:
“In all cases the Case Coordinator or Social Worker must be asked to confirm whether privately arranged care results from an assessed care need, and evidence of their agreement kept on file… If a friend/relative provides private care, the minimum wage can be used as a maximum benchmark to ensure the amount being paid to them is reasonable.”
In relation to day care, the authority of a Senior Finance Officer or Senior Administrative Officer is needed to agree anything exceeding “1 day/week privately funded by the service user.” Alternative health costs (physiotherapy, reflexology, vitamins etc) “will only be allowed in exceptional circumstances if the service user’s GP confirms the need for it.” There is no reference at all to holiday costs.[14]In November 2008, the Authority published further guidance, in draft, and in different, tabular form. Although B has not had a further assessment of charges, I understand that assessments have been conducted on the basis of this guidance since December 2008. The guidance in particular indicates what the Authority “requires” as evidence of a particular item. For example, in relation to “excessive household bills due to a medical condition or disability” (e.g. additional power, water, bedding or gardening costs), the evidence required is said to be “Receipts/Bills”. However, for most items for private care, specialist/excessive clothing requirements, personal items, alternative health costs, equipment and transport) the evidence required is usually “Information in care plan”. In reflecting the importance of the care plan, that reflects the national guidance, the standard text (Clements & Thompson) and the comments of Sedley J in Rixon quoted above (Paragraph 12). In relation to holidays, the guidance is:
“Holiday period up to 7 days. Maximum cost £500 per year”
.

Factual Background

[15]Until 2008, the care costs of B (and the other residents in C) were borne by the Cornwall Partnership NHS Trust (“the Trust”) which was responsible for the care costs of those with continuing health care needs.[16]In 2005-6, the Health Care Commission and Commission for Social Care Inspection investigated services for people with learning disabilities provided by the Trust, following expressions of concern by families and in the media. The resulting July 2006 Report was heavily critical of the Trust, finding that there had been significant physical, emotional and environmental abuse of vulnerable disabled people in its care. The report was also critical of the Authority, as the appropriate agency for the protection of vulnerable adults, for failing adequately to co-ordinate into agency arrangements and, in particular, for having failed to undertake community care assessments of those using services so that it was impossible to determine if people were receiving appropriate services. Although responsibility for providing services to those with continuing care requirements fell on the Trust, the Section 47 responsibility for assessment fell upon the Authority as the relevant local authority. The report concluded (at page 9) that the Trust and Authority “must ensure that ‘person-centred’ planning is carried out”. The Authority endorsed all of the report’s recommendations at a meeting of its relevant committee on 11 July 2006.[17]Action had to be taken. Budock Hospital, which was the subject of particular criticism in the report, was closed. Furthermore, and of particular relevance in this case, those who were receiving care through the Trust were reassessed, and many were found not to require continuing care (for which the local NHS Trust was responsible) but only community care (for which the local authority was responsible). Consequently, responsibility for the care of those people (including B, and the other residents of C) moved from the Trust to the Authority. They exercised that responsibility through an independent trust, the Brandon Trust (the Interested Party in this claim)[18]Because the NHS Trust provided care through the NHS, they did not seek to recover any of the costs from service users. B had paid rent for living at C, and the normal costs of running the household (such as water, telephone, gas and electricity) as well as for clothing, food and laundry: in other words, the costs of living that were not related to his disability at all. However, the Trust had borne all of the costs of B’s care, to which he had not been required to make any contribution. The Authority had traditionally charged those for whom they had provided community care services, into which category B now fell.[19]With regard to the transfer of responsibility from Trust, the Authority began discussions with the residents of C (or, more accurately, because of the inability of the residents themselves properly to engage, the immediate family of those residents including Mr & Mrs B). There were a number of options. One was to register C as a residential care home. That option had disadvantages: it was thought that it would leave the residents with less net income, and the objectives and ethos of a residential care home are very different from supported living. It was agreed (at a meeting on 20 November 2006, confirmed at a further meeting on 19 April 2007) that C should remain in supported living accommodation.[20]It appears from the minutes of those meetings that financial matters were not at the forefront of those discussions, but they were at least mentioned under “Other topics raised” at the April 2007 meeting. It is minuted:
“… [M]oney provided by the [Authority] is subject to financial assessment (very roughly people receiving benefits would not have to make a financial contribution). This is complex and Jean [Pippard, Commissioning and Partnership Officer, Department of Adult Social Care, Cornwall County Council (“DASC”)] will invite a person from the Domiciliary Care Charging Unit to attend the next meeting to explain how this works.”
[21]At a further meeting on 5 July, Ms Sue Colliver (a Senior Finance Officer in the Domiciliary Charging Unit of DASC) attended and:
“… gave an overview of the [DASC] Charging Policy. Individuals will be individually assessed if they are in receipt of funding from DASC, and benefits will be maximised where appropriate. Sue left her card with representatives at the meeting and welcomed direct contact from individuals if they wished any further discussion [of] any of the points raised.”
Mr & Mrs B were at that meeting, at which Ms Colliver was put forward by the Authority as a senior person able to explain the “complex” charging position: as something of an “expert”.[22]That was the last meeting before the changeover of responsibility from the Trust to the Authority in January 2008. So far as B was concerned, Mrs B said (First Statement 25 November 2008, Paragraph 11):
“So, while we realised that charging was something that happened to some people, for instance people who do not receive welfare benefits, there was never a suggestion that it could be a reality for [B]”
. Looking at all of the evidence (including later letters), I have no doubt that that was the genuine understanding of Mr and Mrs B, nor do the Authority suggest otherwise.

B’s Care Plans

[23]The first assessment of B’s means and expenditure (and consequently chargeability) took place in May 2008. As I indicate above, the starting point for any such exercise was the assessment of B’s eligible needs as reflected in his care plan. I was taken to a number of the Authority’s documents that purported to set out those needs. Two of these documents are headed “Care Plan”, namely those dated 4 February and 19 September 2008. Others are headed “Overview Assessment” (22 October 2007) or “Review Form” (19 February, 17 April and 30 October 2008). Although more or less full, each of these documents is in broadly similar form.[24]The October 2007 document is the most comprehensive, and certainly the longest (24 pages). It indicated that the maximum level of assistance that B required was one person, but that assistance was required for many everyday activities. “Problems/needs” were identified specifically in relation to level of social contact (in respect of which his family and creative workshops were identified as his two sources of relationships), family/carer relationships and level of carer support:
“[B] could not live his life safely and meaningfully without support throughout the day. At times he also needs someone to be awake during the night should his sleep be disturbed by his excitement.”
There was also an indication that Mr & Mrs B “would like him to have more access to activities outside his house, anything to stop him from being bored….”. Because of his need for routine, it was recognised that this would not be easy to accommodate:
“It may be possible for him to consider activities which start later in the day. [B] is able to undertake activities which could be built upon such as housework, chopping wood and managing the recycling. A further assessment of skills and potential may be advantageous to [B]. Individual support to [B] is vital for him to achieve his full potential.”
[25]The same themes were picked up in the February 2008 document, headed “Care Plan”, although this is only 5 pages long. The importance of close contact with his family was indicated: and the need to “provide [B] with individual support to enable him to maintain his tenancy and engage in appropriate social and learning activities. The service must ensure that [B] has choices about his day to day lifestyle and support in making choices which are more difficult for him.” The timetable of care was monotonously regular Monday to Thursday. There are no detailed steps identified that it was proposed would be taken.[26]This document was reviewed at a meeting with Mr & Mrs B later in that same month. They again referred to their wish for B to have more access to outside activities (which was to be followed up by Ms Kate Curnow (B’s Senior Support Worker) who was going to “explore other avenues for activities…” She was also going to make an appointment with B’s doctor for an assessment, particularly into his apparent depression and the suggestion in his health file that he had manic tendencies for which he was on medication.[27]The April 2008 document was largely repetitive, except that it did refer to B being fit and well, and going swimming 1-3 times per week under the heading “Physical Well-being”. The plan in that regard was “meeting current needs”. That was the last review or plan before the two charging assessments in May and July/August 2008.[28]There were two further short reports in September 2008 (headed “Care Plan”) and October 2008 (“Care Plan Review”). The former stressed the need for B to maintain close contact with his family. It did not set out any particular steps it was proposed to take in relation to B. The latter was also short (3 page), and appears to be a review of the September plan - but Mr & Mrs B did not attend the review meeting. The document did not reveal the result of any meeting that might have taken place between Ms Curnow and B’s doctor: but it did state that “[Ms Curnow] feels that introduction of more/new activities would upset [B] and cause him to worry.”

The Challenged Decision

[29]The first assessment for charging purposes took place in May 2008, and was conducted by Ms Colliver. On 27 May, Ms Colliver met Mr and Mrs B, at their home, following a meeting Ms Colliver had with the B’s Senior Support Worker and the C Team Leader, Ms Kate Curnow. Such a meeting with the service user or his family carers is of course envisaged by the guidance referred to above. Mrs B takes up the story (First Statement, Paragraphs 15-17):
“15. … [A]t the outset of our discussion, Sue Colliver had about three-quarters of the information that she seemed to need. As I recall, based on that information she told us that she had calculated that [B] should contribute £18.00 per week towards the cost of his care at [C]. [Mr B] and I did not want [B] to have to pay anything and we told Ms Colliver about other things that [B] spends his money on and which we thought she should include in the calculation, including holiday-related costs. This resulted in Sue Colliver re-calculating [B’s] contribution as £0. During the meeting Sue Colliver filled in a form setting out the calculation. Before leaving our house, Ms Colliver gave us a copy of the completed form … 16. Until that meeting when Sue Colliver presented us with the financial assessment, [Mr B] and I had no idea that [B] would have to pay anything at all. At the end of the meeting, we understood that [B] would not have to pay anything. 17. So once again, after the meeting everything carried on as normal …”
[30]It was therefore clear to Mr & Mrs B following this meeting (if it had not been clear before) that the Authority were entitled to levy a charge for care services, and that, subject to an assessment of means and expenses, they proposed to levy a charge. In other words, Mr & Mrs B knew that the Authority did not intend to waive any charge which they could recover: they were aware that B would not be charged only if and only because the calculation of means and expenses led to a nil figure against which any charge could be levied.[31]However, the May assessment calculation did lead to a nil figure. The amount of net income against which a charge could be levied was calculated on the basis of total income less sums allowed against that income (including DRE). B’s only income has at all material times been from benefits, namely income support (including some disability premiums) and disability living allowance (both mobility and care components). Excluded from chargeable income are(i) the mobility component of disability living allowance,(ii) an amount equating to the income support received plus 25% and(iii) DRE. B’s income, and allowances (i) and (ii), are uncontentious. This claim only concerns the level of his DRE. Self-evidently - because it is a set-off against income - the higher the level of DRE, the lower the available amount that can be subject to a charge.[32]On the basis of information she already had (including, presumably, the relevant care plans including reviews and information she had obtained from her meeting with Ms Curnow), Ms Colliver provisionally calculated that B should contribute £18 per week towards the cost of his care. However, in line with the relevant guidance, at the May meeting she discussed other elements of expenditure that Mr & Mrs B thought should be included in the calculation, such as holiday-related costs. Following those discussions and still while she was with Mr & Mrs B, Ms Colliver recalculated the DRE figure as follows: Clothing £6.41 Home stay £32.31 Water excess £2.11 Carpet cleaning £1.06 Excess fuel £8.20 Gardener £1.00 Window Cleaner £0.20 Beach hut rental £2.56 Reflexology £15.00 Swimming £10.00 Aromatherapy £7.12 Gateway Club/Swimming Membership £2.69 Holiday £8.72 That was all set out in a handwritten table prepared by Ms Colliver. In that table, in respect of each of the DRE items in a column headed “Evidence seen Y/N”, Ms Colliver inserted “Y”. The sum of that weekly expenditure exceeded B’s relevant income (by £5.54). Consequently, there was no sum in his case against which a charge could attach: and the weekly charge was consequently assessed as nil. That calculation was handwritten by Ms Colliver at the meeting, and was countersigned by Mrs B in a declaration that the information provided to Ms Colliver was accurate.[33]That meeting was held on 27 May. By 4 June, some of the charging assessments for the 180 people who (like B) were transferring across from the Trust to the Authority had been reviewed by the Financial Assessments and Benefits Team (Maria Harvey, who headed up the team from 1 April 2008, and Robin Stephenson). Before the end of May, Mr Stephenson had found that some of the assessments were inconsistent with the application of local guidance for DRE (Mr Stephenson Statement 11 February 2009, Paragraph 6): and a further review “confirmed that local guidance had been applied inconsistently in financial assessments for this group of service users” (Paragraph 7) - by which I understand him to mean that there had been inconsistent application of local guidance as between those service users already being provided for by the Authority and those who had become the Authority’s responsibility as the result of transfer. At the 4 June meeting: “It was agreed in principle that charges would have to be applied consistently but also to consider a transitional arrangement due to the fact that there had been incorrect financial assessments carried out and that [Supported Living Services] users had come from a system where there had been poor practice in the service provided and where charges were not applicable” (Mr Stephenson Statement, Paragraph 7)”.[34]The need for “transitional arrangements” was set out in an internal email from Ms Harvey to Nicholas Fripp (Head of Operational Transformation (Learning Difficulties) within DASC from 17 March 2008) dated 6 June 2008, which effectively reported on the 4 June meeting:
“…..In the sample that Robin [Stephenson] and I have been through it highlighted that there was a lack of evidence to support some of the DREs and other DREs were also questionable. One of the main issues highlighted was should some of the items be treated as DRE or should they be part of the Care Plan…. ….Therefore due to the necessity of gaining evidence, decisions on what should be in the care plan and the potential negativity of this charge, it was proposed that there should be a transitional arrangement. This transitional arrangement would not only help the user but give DASC time to review and make decisions about what should be in the Care Plan and what should not…. Guidance to care managers explaining what should be part of the Care Plan and paid for by DASC would be decided upon by yourself and then passed on to Care Managers once completed….”
[35]Therefore, by 4 June (about a week after B’s May assessment):(i) The Authority had identified a major problem in the assessment to charging of those service users who had transferred over from the Trust. The levels of assessment were much lower than the levels for those service users who were already being provided similar services by the Authority.(ii) Two reasons for this discrepancy had been identified by the Authority. First, the assessors had allowed as DRE items which could not fall within that category of expenditure. Second, the assessors had allowed as DRE items which could fall within that category but which were not evidenced as the Authority required from other users. Evidence was lacking in respect of both the identification of expenditure as reasonable DRE, and also quantum (receipts and bills).(iii) Concern was expressed over the content of the care plans: as to what should fall within the care plan, and what should not.(iv) In the circumstances, it was proposed that there be transitional arrangements to enable the Authority to do further work on the care plans, and also do further work on ensuring that DRE was properly evidenced.[36]It was agreed that every assessment would be reviewed as a paper exercise - and a letter would go out to all service users affected informing them that there would be no contribution before October 2008, and that assessed charges would be communicated by the end of July 2008.[37]That letter was sent out on 30 June, in the following terms:
“You have recently been visited, or very soon will be, by a person from the [DASC]. This person will look at how much you will need to pay towards your support. Not long ago we met in Adult Social Care to think about how much money you may need to pay towards the cost of your support. You will not need to pay any money at all until October 2008. We will send you another letter at the end of July to explain how much you will have to pay and how this will work.”
[38]Mr & Mrs B say that they never received this letter. In any event, had they received it, they would not have been discomforted by it nor gained much from it. They had been seen by Ms Colliver at the end of May: they considered her to be competent in making financial assessments: and B’s contribution had been assessed at nil. In this letter there was nothing to suggest that that assessment was wrong - as the Authority considered it to be by this time - or that a fundamental review of the assessments was under way, or that the assessment might shortly change dramatically upwards. This letter was, at best, unhelpful: and at worst positively misleading as to the then current position. Had it been received, it would have done nothing to alert Mr & Mrs B as to what might be on the way.[39]In fact, the reviews took place over three days in mid-July, on a desk top basis - i.e. on the basis of the available documents, and without any further input from Mr & Mrs B. Although there had been the suggestion that they would take place with input from the Finance Officers who performed the original assessments, there appears to have been no input from Ms Colliver in the reassessment of B’s liability to charge (although there is no evidence before me from Ms Colliver herself, and this remains largely unexplained). Dr Armstrong for the Defendant submitted that, in May, Ms Colliver had before her no possible evidence upon which she could properly form the view that expenditure was DRE. I do not agree. For the May assessment, Ms Colliver had(i) the paper work,(ii) the benefit of a meeting with the C team leader, Ms Kate Curnow and(iii) a meeting with Mr & Mrs B. Those meetings were not minuted, but Mrs B gave evidence that they discussed other expenditure that, in the view of Mr & Mrs B, should properly be DRE (First Statement, Paragraph 15). The July reassessment appears to have taken place only on the basis of the documents, and without any input at all from the service user (B), his carers (Mr & Mrs B) or B’s Senior Support Worker and the Team Leader at C (Ms Curnow) save for her input into the documents such as the care plans and reviews.[40]The Authority realised that the reassessments would likely shock those who had not previously been charged (Mr Fripp Statement 11 February 2009, Paragraph 10). As Mr & Mrs B did not receive the 30 June letter, the letter of 8 August detailing the results of the reassessment indeed came as a complete shock. Although, for the reasons I have already given, receipt of the 30 June letter would not have alleviated that surprise much if at all. The letter was addressed to B, and sent to him at C. Mr & Mrs B criticised the Authority for not sending them the letter or a copy of it, as patently B would not be able to understand it - but that criticism is slightly harsh. B had the benefit of Support Workers to advise and help him, and the object of supported living is to enable people to do as much for themselves as they can with local support. Since they have been requested to do so, the Authority have sent Mr & Mrs B at least copies of similar correspondence in relation to B.[41]The 8 August letter was eventually sent to and received by Mr & Mrs B in late August. The letter read:
“Following our letter of 30 June 2008, this letter is to explain about your contribution towards your care. As you may be aware, under the Government’s Fairer Charging policy, all users receiving care that comes under Adult Social Care’s responsibility are liable to contribute towards the costs of that care. How much an individual will need to pay, and whether they will have to pay anything at all, is determined by the [DASC], in accordance with Government Guidance. Individual Financial Assessments The amount each person contributes is calculated through an Individual Financial Assessment (IFA). An IFA is based on a user’s income including benefits minus [DRE]…. In assessing [DRE], the overall aim will be to allow for reasonable expenditure needed for independent living by the disabled person. Items where the user has little or no choice other than to incur the expenditure, in order to maintain independence of life, will normally be allowed. For the most part, assessment interviews, including assessments of [DRE], will be carried out at the user’s home. Your Individual Financial Assessment and interim charging arrangements from 4th October 2008 Your IFA shows that your contribution will be £68.5 per week. This will remain in place until October 2009, unless your circumstances` significantly change. You may have received a previous assessment. This has been used in conjunction with other information and guidance to reach the amount of your contribution. A copy of the revised Financial Assessment, showing how this figure has been arrived at, will be sent within the next few weeks. During the year October 2008-October 2009 we will be reviewing both your Care Plan and actual costs submitted as evidence of [DRE]. Many of the figures that we have used in the current round of IFAs have been based on information provided, and it is hoped that during this year we will have evidence of actual bills, etc. For the Care Plan we will be talking to carers, advocates etc as to whether certain expenditure is necessary to the sustainability of the user’s independence. If so this will be entered into the Care Plan and staff carrying out IFAs will be able to use this information when deciding whether it is [DRE]. Introduction of the full charging regime from 3rd October 2009 During the summer of 2009 there will be a review of the overall position in anticipation of the full contribution coming into force from 3rd October 2009. Your Care Provider will be asked to collect your contribution as this amount will be deducted from their payments. If you have any queries about this please contact your social worker in the first instance, or if it is specifically about how the contribution has been calculated please contact Marie Harvey on [telephone number].”
It was signed by Ms Sue Jago, Team Manager, SLS Team. Individual Financial Assessments Your Individual Financial Assessment and interim charging arrangements from 4th October 2008

Introduction of the full charging regime from 3rd October 2009

[42]The letter did not contain a calculation of the new assessment, but Ms Harvey has confirmed (Statement 11 February 2009, Paragraph 14) that the following items were removed as DRE “either due to lack of evidence or they were not applicable as DREs”: Home stay £32.31 Carpet cleaning £1.06 Window Cleaner £0.30 Beach hut rental £2.56 Reflexology £15.00 Swimming £10.00 Aromatherapy £7.12 Holiday £8.72[43]Ms Harvey explained that (Statement 11 February 2009, Paragraph 16):
“A number of items could possibly be classed as DREs but no evidence was forthcoming. For example, the evidence could come from a Doctor or other medical practitioner or via the care Plan showing extra costs involved for home stay and why this is necessary for [B] to remain living in the community. Evidence is required not only to show there is a need, but also to prove that money has been spent on the relevant item or service. The following table gives the reasons for not treating the expenditures listed above as DRE. Item/Service Reason for not treating as DRE Home stay This would not normally be considered to be a DRE unless there was specific evidence around the necessity. No evidence has been seen as yet. Carpet cleaning Not normally treated as a cost related to disability, but as an everyday expense. Window cleaner As above Beach hut As above. Reflexology As above. However, evidence from a GP or medical practitioner might change this to a DRE. No evidence has been seen as yet. Swimming As above. No evidence seen as yet. Aromatherapy As above. No evidence has been seen as yet. Holiday The cost of a holiday is not a DRE but the cost of a carer/s could be considered as a DRE if there was evidence of need in the care Plan. No evidence has been seen as yet.”
[44]The result of excluding those items was to reduce the figure for DRE from £98.15 to £23.88, with a resultant increase in the income available for charge. With minor adjustments (which are not relevant to this claim), the weekly charge rose consequently from nil on the basis of the May assessment to £68.50, albeit with transitional reductions to nil to October 2008 and to £30.00 to October 2009. It is that decision to make those charges that B seeks to challenge in these proceedings.

Grounds of Challenge

[45]The challenge is made on three grounds.

Ground 1: Legitimate Expectation

[46]In the Summary Grounds, this was the main ground of challenge, and put on the broad basis of “Breach of substantive legitimate expectation/error of fact/irrationality/irrelevant considerations”. It was based on the premise that, in giving B the May assessment, the Authority made a clear and unambiguous representation to B that it was accepting each and every head of DRE identified in that assessment and/or B would otherwise not be charged: he relied on that assessment: and the Authority could not “renege” on the earlier assessment as they sought to do in the August assessment.[47]This ground was rightly not pursued by Mr Coppel at the hearing before me. It is unarguable. Mr & Mrs B were aware from the 27 May meeting (if not before) that the Authority proposed to charge community care service users subject only to the calculation of the net income against which a charge could be made. The May assessment could not bind the Authority for all time: it was necessarily for a limited duration - and the Authority could not burdened with an inability to charge B for services if (as they now contend) the May assessment was simply flawed and wrong. A public body could not be so bound. Amongst other things, it would be unfair to other users. B (and his parents) may be disappointed by the change in assessment - and even the way in which the Authority have handled the issue - but there is no evidence of legal detriment which could possibly found a claim for legitimate expectation. Grounds 2 and 3: Failure Properly to Assess Needs, and Error in Construing and Following Relevant Guidance[48]These grounds can sensibly be dealt with together, particularly as one way in which it is alleged that the Authority failed to follow the relevant guidance is in their failure to prepare a proper care assessment.[49]It may assist to start by reiterating the duties that lie upon the Authority in respect of someone like B with community care needs. The authority is required to(i) make an assessment of the person’s care needs,(ii) decide what (if any) services they will provide to fulfil any of those needs, and(iii) assess the service user’s ability to pay and what charge should be levied from the service user (if any) (see Paragraph 7 above). (i) and (ii) are obligations imposed on an authority by Section 47 of the 1990 Act. Although a written care plan may be regarded as potentially important in the process (and it may be difficult in practice to show that the duties have been complied with without an effective care plan), if an authority can show that it has complied with these duties, the form in which it does so is not relevant.[50]Although separated out into several strands for the purposes of argument, the thrust of Mr Coppel’s submissions was that, looked at as a whole, one could not be satisfied that the Authority had complied with its duties when they proceeded to assess B to a charge of £68.50 per week on 8 August 2008: indeed, he submitted that I could be well satisfied that it had breached its duties in arriving at that decision, and consequently the decision was unlawful.[51]Before I consider with the main strands of the submissions, let me clear the ground by dealing with two peripheral submissions which did not impress.[52]First, Mr Coppel submitted that, in direct contravention of Paragraph 80(xi) of the 2003 Guidance, the Authority did not consult service users (including B, or Mr & Mrs B) when they changed their charging policy between May and August 2008. That submission, in that form, is not to the issue - because there was no policy change between May and August 2008. That is precisely Dr Armstrong’s point: it was the same policy, but in May it was simply misapplied. No need for fresh consultation on the basis of a change of policy therefore arose. It is a different point as to whether there should have been consultation with (amongst others) B and his parents in that period because of the potential increase in charges: Paragraphs 98 and 99 of the 2003 Guidance stress the importance of consultation in the event of significant increases, described as “one of the main principles” (see Paragraph 13(ix) above). I return to that issue below.[53]Second, Mr Coppel suggested that, in describing DRE, the use of the phrase “essential expenditure for independent living” by the Authority in itself betrayed a misinterpretation of the appropriate requirement. However, I accept Dr Armstrong’s submission that, in essence, this wording was substantive the same as the wording used in the guidance: “expenditure needed for independent living”.[54]I now turn to the main strands of Mr Coppel’s submissions, which were as follows. I have abbreviated these submissions, and trust that I have done them justice.[55]First, Mr Coppel submitted that the various documents that purported to set out B’s care needs - whether headed “Care Plan” or not - neither adequately assessed those needs nor set out cogently what the Authority proposed to do to satisfy those needs that were eligible for their assistance. There was neither a clear statement of objectives in any of the documents, nor a comprehensive list of B’s care needs, nor a list of services to be provided in respect of those needs. The relevant guidance, such as “Care Management and Assessment - A Practitioner’s Guide” (see Paragraph 12 above), was not followed in their preparation. None of the care plan documents can give confidence that B’s care needs have been properly addressed. Furthermore, by August 2008, the relevant plan (February 2008) was 6 months old, and was just about to be superseded by the September and October documents. The whole assessment exercise is therefore built on an unsound foundation.[56]Second, he submitted that, contrary to the relevant guidance, the Authority failed to engage with B and his parents in coming to the assessment of charges. This was the particular issue highlighted by Blake J when he gave permission in this case. The Community Care Assessment Directions 2004 and the 2003 Guidance require that an authority engages with, and tries to agree with a service user and his carers, both the steps that the authority will take in relation to identified eligible needs and also in the assessment of charging for those steps. In this case, Mr Coppel submitted, there was no such engagement, let alone actual or attempted agreement. There was a limited paper exercise, without any input from B, his parents or the Senior Support Worker and C Team Leader (Ms Curnow), unlike the May exercise which had that additional input. The Authority erred in law in failing to engage as the Directions and guidance required.[57]Third, the Authority took a restrictive approach to the assessment exercise, which was again in breach of the guidance which requires both a purposive approach and that the self-assessment of the service user (which must include the assessment of his carers, such as his parents) to be taken into account.[58]In response, Dr Armstrong submitted the following.[59]First, that it could not be sensibly said that the Authority did not have sufficiently full a picture of B’s care needs when performing the assessment. Through the Brandon Trust, it had access to several people who had been working with B at C for many years. There were regular care plans and supporting documents. In any event, any failure was immaterial, because, after reviewing possibilities of further activities, Ms Curnow took the view on 30 October 2008 that any new or further activities would upset B and cause him to worry. In that review document, although Mr & Mrs B were not at the review meeting, it is reported that, “Both [Mr & Mrs B] and [Ms Curnow] feel that [C] meets [B’s] needs”: and Mr B is reported as having confirmed on the telephone that he was happy with the support provided for B (Carole Liesse Statement 11 February 2009, Paragraph 8). With regard to the suggestion that the plan was not up to date,(i) it was reviewed in February 2008, and(ii) the September 2008 document was not materially different from the February 2008 document, so any failure on the Authority’s part was again immaterial.[60]Second, Dr Armstrong accepted that there might have been a lack of sufficient engagement before the 8 August decision letter - but, he said, since then the Authority have made a number of offers to meet Mr & Mrs B and reconsider the assessment in the light of any new evidence they wished to put forward. Ms Harvey offered to go and see them to go through the assessment and see if there was any evidence for other expenditure to be included in DRE as early as 12 August 2008 (Maria Harvey Statement 11 February 2009, Paragraph 5). That offer was repeated in Mr Fripp’s letters of 11 September and 1 October 2008, and in the response to the pre-action protocol letter on 17 November 2008 (which makes abundantly clear that they were offering a full review of the charge assessment: see Paragraph 6.1). Therefore, any lack of engagement has been cured by these subsequent offers.[61]Third, Dr Armstrong denied that the Authority had adopted a restrictive approach, but also submitted that, even if they had, on the facts of this case that would be immaterial if regard was had to the actual expenses sought by B to be categorised as DRE. In the case of each item, there was no evidence that the expenditure had been incurred and was needed by B for independent living. It was purely an evidential issue: if evidence were produced, then the Authority would be pleased to recategorise expenditure as DRE.[62]One of the difficulties and unhappy features of this case is that the Authority had a duty to engage with (effectively) Mr & Mrs B, but, in relation to the charging issue, that engagement has never happened. Constructive engagement requires the good will and best efforts of all concerned. Mr Fripp said that he “wanted to make sure that prior to any introduction of charges people had the correct information and the opportunity to question their individual assessments” (Statement 11 February 2009, Paragraph 5). He singularly failed in his aspiration. In this case, the Authority failed to consult Mr & Mrs B over the increase in charges at all - or even be fully open with them as to why the May assessment was not properly conducted, and had to be redone. Then, when the Authority did offer to engage, Mr & Mrs B have refused to do so. Each of the parties have their reasons for these failings. The Authority say that, after the original May assessments, they had a management problem on their hands and they had to act quickly which could only be done by way of a desktop reassessment (although a lack or resources cannot excuse a failure properly to do what had been wrongly done in May, and this does not in any event explain their lack of communication to Mr & Mrs B). Mr & Mrs B say that they have lost faith in the Authority: and are not prepared to engage with them unless and until they are satisfied that the Authority will take a proper (and lawful) approach to the charges assessment. Be that as it may, it has meant an impasse, which has not benefited B, nor reflected well on the Authority or Mr & Mrs B. In saying that, I do not suggest for one moment that any party has other than the best interests of B at heart. It is clear that they do.[63]With that prelude, I now come to consider whether, in making their decision of 8 August 2008 to increase the charge for care services for B from nil to £68.50 (albeit with a transitional ramp), the Authority acted lawfully. I am quite satisfied that they did not.[64]First, in my judgment, the Authority acted unlawfully in failing to engage with Mr & Mrs B as they ought to have done, and as the Community Care Assessments Directions 2004 and 2003 Guidance in particular required them to do. As Ms Colliver at least apparently sought to do in May 2008, with Mr & Mrs B, they ought to have identified B’s needs and the actions that they proposed to take to alleviate those needs, and then considered the question of whether the costs of such steps were properly DRE. The May assessment form indicated that Ms Colliver (an experienced Senior Financial Officer, used to making such assessments) was satisfied that the expenses identified in the form were reasonable DRE and were expenses that had been or were going to be incurred. She came to that view with the benefit of having met both Ms Curnow and Mr & Mrs B, and discussed the relevant needs and steps with them. In July/August, the Authority were in breach of the relevant Directions and guidance in performing an assessment without engaging with Mr & Mrs B at all, particularly as the reassessment increased the charges considerably. In the light of the May assessment - and Ms Colliver’s views on what of B’s expenditure constituted DRE - that breach cannot be considered immaterial. To be fair to Dr Armstrong, he did not seek to defend this lack of engagement. His submission went to the steps the Authority took after the decision, which (he submitted) rescued them in terms of merits. The Authority quickly realised that they had not done enough to communicate with service users in relation to the charges, and they sent out a statement from Mr Fripp apologising and arranged a meeting to address concerns (see Mr Fripp Statement 11 February 2009, Paragraph 12). But those post-decision steps cannot make valid an unlawful decision. In any event, I do not accept that B has not suffered prejudice, for the reasons I give below.[65]Second, there is no doubt that the Authority’s approach to their decision of 8 August was, at least in part, defective. Although Dr Armstrong said that the Authority’s view now was that they merely required evidence that expenditure in each of the claimed categories was DRE and they would allow it, that was not their approach at the time. In his letter of 1 October 2008 to B’s solicitors, Mr Fripp said this of the holiday item:
“As you will see from our [DRE] guidance, holidays and trips out are not specifically mentioned. This is because the Department does not consider either as essential expenditure needed for independent living and is treated as a discretionary purchase.”
That is of course a reference to the pre-December 2008 guidance of the Authority, (referred to in Paragraph 15 above). In this letter, Mr Fripp was clearly referring to the additional costs of a holiday as the result of a service user’s requirement for a carer (i.e. the costs of a carer’s travel, accommodation, food, etc, and a charge relating to that carer’s wages), and not the service user’s own costs of travel, accommodation, food etc - because he was responding to the letter of 11 September from B’s solicitors which made clear that the former were the only holiday costs being claimed.[66]Mr Fripp’s letter betrays a number of errors of approach. First, as the Authority accepted through their Counsel Dr Armstrong at the hearing before me, additional expenses of a holiday (such as those of an accompanying carer) which are all that B claims, may be DRE: and before me Dr Armstrong accepted that there was probably enough evidence in this case so to classify them Certainly it is not correct to say, as Mr Fripp did, that such expenses are incapable of being DRE, irrespective of the evidential basis. Second, the Authority’s guidance is only guidance. As I indicate above (Paragraphs 15-16), the Authority’s guidance before December 2008 had no reference to holidays: after November 2008, there was reference to one week and a maximum cost of £500. But each of these guides can be no more than that: they must be capable of being overridden if (for example) a service user has evidence, perhaps from a medical practitioner, that two weeks of holiday is necessary for a particular individual as needed for independent living. The discretion - and proper judgment - that lies in the Authority cannot be bound by the guidelines, as Mr Fripp suggests. Third, the indication that holidays can never be regarded as DRE at least heavily suggests that Mr Fripp’s approach to the parameters of “essential expenditure needed for independent living” is flawed - because on any proper view such expenditure must be capable of being DRE.[67]Third, I do not consider that the Authority’s approach to B’s care plans, in context, was lawful. Care plans cannot be viewed in isolation, as Mr Coppel invited me to do. They have to be viewed in the whole context of a case. That is what Sedley J referred to in Rixon (see Paragraph 12 above), and there are reflections of the same point in the judgment of Hallett LJ in (e.g. at Paragraph 72). Mr Coppel is of course right that, with the benefit of hindsight, the care plan documents could have been fuller. Indeed, they do not fully comply with the guidance in terms of content. Ms Harvey appears to have recognised that the relevant care plans needed work doing on them, before a full charges assessment could be made, e.g. (see her email to Mr Fripp of 6 June 2008 quoted at paragraph 36 above). The responsibility for doing that further work fell upon the Authority. Whilst I appreciate - and endorse - the comments of Hallett LJ about the caution with which adverse judgment should be passed upon a particular care plan (Ireneschild, Paragraph 71), in my judgment it was not open to the Authority in this case to refuse to accept expenditure as DRE on the basis that the required need was not evidenced in B’s care plan, whilst at the same time identifying defects in that plan and failing in their duty to consult Mr & Mrs B who may have been able to provide the evidence lacking in the care plan itself.[68]Fourth, it is for the Authority to assess eligible needs. That is their statutory duty under Section 47 of the 1990 Act. Of course, if requested to do so, a service user must provide evidence that DRE has actually been expended (by the provision of receipts, bills etc), and that is the specific reference to the provision of evidence in the 2003 Guidelines (see Paragraph 13(ix) above). Furthermore, it is right that the views of the service user and family carers are sought as to his needs and the steps the authority propose to take in respect of those needs. The relevant guidance requires that. The user may of course also be able to produce evidence of a particular need. But the authority cannot avoid its obligation to assess needs etc by failing to make an appropriate assessment themselves, in favour of simply requiring the service user himself to provide evidence of his needs. In this case, so far as the August assessment is concerned, I am afraid the Authority appears to have abrogated its obligation in that way. Ms Harvey appears to have accepted that the care plan fell short. In any event, I consider the Authority acted unlawfully by disallowing expenditure as DRE on the basis that B had failed to evidence the expenditure as DRE to their satisfaction whilst they gave B (effectively Mr & Mrs B) no opportunity to make good that perceived evidential deficit. In the Authority’s own guidance, it is suggested that, if evidence is not forthcoming, then the Finance Officer should ask for it to be produced at the next charges review. Whilst that appears to be concerned with evidence of expenditure (receipts, bills etc), there is no suggestion in that guidance that a failure to produce evidence should be fatal, and that no opportunity should be allowed to correct evidential deficits.[69]Fifth, even looking at the care plan documents alone - i.e. without the benefit of any input from Mrs & Mrs B, or Ms Curnow - I do not accept that there is no evidence supporting the relevant heads of expenditure as DRE. Homestay costs is the largest item (£32.31 per week). The Authority’s own guidance presupposes claims will be made by family carers (see Paragraphs 15-16 above). The care plan documents are replete with indications that B’s family is important to him with regard to relationships: and also that he needs 24 hour support (for example, in the October 2007 document, see Paragraph 26 above: and the February 2008 Care Plan makes clear that: “Other than when he needs medical treatment [B] needs a support worker with him”). There is evidence that the money payments are indeed made to Mr & Mrs B. Whilst I appreciate that weight of evidence is for the Authority as decision maker, it is not right to say there is no evidence in support of this item in the care plan documents: and they have not indicated why this evidence is inadequate and what further evidence they require before accepting this item as DRE. That is why engagement with Mr & Mrs B, required by the guidance, is so important.[70]I accept that the evidence in the care plan documents in relation to some of the other items is not as strong. However, for example, in the April 2008 document, there is reference to his swimming 1-3 times per week, under the heading “Details of changes/progress” in relation to his physical well-being. Whilst there does not seem to be any written evidence from medical practitioners about the benefits of reflexology and aromatherapy, one does not know what evidence Mr & Mrs B or Ms Curnow may be able to give, particularly if as presaged in the care plan documents Ms Curnow has seen B’s medical practitioner about his depression. These are enquiries the Authority ought to have made before making their August 2008 assessment.[71]For these reasons, I find that the charging decision in the letter of 8 August 2008 was unlawful.[72]That takes me on to appropriate relief.[73]I will certainly hear submissions in relation to relief, if and when appropriate, and in relation to directions in the meantime. However, the most important and urgent thing is for a proper charging assessment to be made by the Authority in relation to B, on the basis of the legal guidance contained in this judgment. That should not be difficult for them, because during the course of these proceedings, they appear to have recognised at least some of their deficiencies in making the August assessment. They will need to engage properly with Mr & Mrs B, who will, I am confident, cooperate with the Authority in the exercise. If necessary, I can give directions to ensure that that engagement is productive. However, I understand that meetings have already been arranged between Mr & Mrs B and the Authority. In the circumstances, subject to any further submissions, I would propose to stay this claim until 1 May 2009 with permission to apply, to allow those discussions to proceed. I reserve any further application in relation to this matter to me.

Cited in 1 later judgment