KM, R (on the application of) v Cambridgeshire County Council [2010] EWHC 3065 (Admin)

[2010] EWHC 3065 (Admin)Case No CO/7723/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26 November 2010
Before
HIS HONOUR JUDGE BIDDER QCSitting as a Deputy Judge of the High Court
Between
THE QUEENClaimanton the application of K.M.ClaimantCAMBRIDGESHIRE COUNTY COUNCILDefendant
Mr Ian Wise QC, Mr Ben Silverstone(instructed by Messrs Scott-Moncrieff, Harbour & Sinclair) for ClaimantMr Jonathan Auburn, Mr Benjamin Tankel(instructed by Legal Services, Cambridgeshire County Council) for DefendantHearing Hearing dates: 11 and 12 November 2010Royal Courts of Justice, Strand, London
Judgment
[1]The Claimant seeks judicial review of the Defendant’s decision of 5 January 2010 to award him £84,678 as a direct payment to meet his assessed care needs. The application before me has been listed as a rolled up application. Originally, the grounds of the claim were fourfold, namely: i) that the Defendant had failed to assess the Claimant’s needs; ii) that the Defendant had failed to provide reasons for its service provision decisions; iii) that the Defendant’s methodology used to calculate care packages lacked transparency; iv) that the Defendant was in breach of its duty to adapt the Claimant’s home.[2]Although the Claimant nominally continues to argue grounds (i) to (iii) above, it appeared from Mr. Wise QC’s skeleton that he sought at the hearing before me to make his central challenge in reliance on an allegation that the Defendant was in breach of what is contended to be an absolute obligation to provide him with a care package to meet his assessed needs. That is a new ground that it was predictable, in my judgment, from the first three grounds would in due course be relied on. As this is a pre-permission hearing, the result of refusing permission to argue that new ground would result in the Claimant having to issue fresh judicial review proceedings. I did not consider that the Defendant had been significantly prejudiced in dealing with the new ground and I thought it right to allow argument on the new ground and, if necessary, to permit an amendment to the grounds of claim to incorporate it.[3]That appeared to be the Claimant’s position until I received at the hearing the speaking notes of Mr. Wise QC and heard his arguments. It appeared to me clear beyond doubt that in the speaking notes the Claimant had again changed tack and was reverting to a reasons attack on the decision rather than contending that the decision to give only the £84,678 was irrational. Although Mr. Wise, when asked by me whether he had abandoned the irrationality argument, maintained he had not, I found his explanation of how that argument was consistent with the content of his speaking notes and his oral argument unpersuasive and one only has to compare the relief claimed in the skeleton (a mandatory order requiring the Defendant to increase his personal budget to £120,000, additional to a declaration that the offer of the other sum or sums were insufficient to discharge its obligations to the Claimant and that its reasons for those offers did not establish that those sums were sufficient) and that at the end of his speaking note (a declaration that the Defendant has failed to explain how the Claimant’s needs can be met from the sums offered and a mandatory order requiring the Defendant to provide a reasoned decision as to how much they propose to allocate for the Claimant’s care) to recognise that there has, in fact, been a substantial shift in the way that the Claimant has sought to put his case.[4]In fact, I have thought it right to deal both with the reasons argument and the rationality argument, the one based on oral submissions and the speaking note, the other, based on the skeleton and oral argument in reply to Mr. Auburn. In my judgment, the shifts in the Claimant’s position have been undesirable and have made both the Defendant’s job of answering the true case and, indeed, the court’s task of making a judgment in the claim unnecessarily difficult.[5]The factual background to this case is that the Claimant is a young man who is now aged 26 and who has a range of serious physical and mental disabilities. He was born with no eyes or optical nerves, has learning disabilities and an autistic spectrum disorder. He has other medical conditions including a growth hormone deficiency, spinal disease, lung and hearing problems and a rare condition known as septo-optic dysplasia (SOD).[6]Despite those very serious health problems, the Claimant has many abilities. He is able to read Braille. He can communicate his desires and aspirations. Although his education has been disrupted because of ill-health he has, nevertheless, obtained two GCSEs (in French and music). He has a certificate in drumming. He plays the piano and clarinet, is keen on jazz and composes his own rhythm and blues music.[7]There is no doubt, however, that he needs significant support in his everyday life. He has learning difficulties. He is unable to feed himself with a knife and fork. He needs help with self-care, a sighted guide to accompany him when outside his home, and support with many living skills.[8]He has had various placements, more or less successful, set out in the chronology at the start of the Claimant’s skeleton argument, which I gratefully adopt. He now lives with his mother, the litigation friend, and his younger brother and sister in a village in the Defendant Authority’s area. There was a complaint (original ground (iv)) that the Defendant was in breach of its duty to adapt the Claimant’s home, which had been unsuitable council-owned accommodation. However, the family have recently moved into larger private rented accommodation and will be seeking the assistance of the Defendant to ensure that home is suitable for the Claimant’s needs. Ground (iv) has, therefore, fallen away.[9]The Defendant Authority are responsible for the provision of care to the Claimant. In summary, in the provision of such care, a Local Authority must assess an individual’s care needs and it must also make provision which meets the reasonable needs of the individual concerned.[10]Section 29 of the National Assistance Act 1948 states that:
“(1) a Local Authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority, shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say, persons who are aged eighteen or over blind, deaf or dumb, or who suffer from mental disorder of any description and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister.”
[11]Section 2 of the Chronically Sick and Disabled Persons Act 1970 states:
“(1) Where a Local Authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for or any of the following matters, namely- (a) the provision of practical assistance for that person in his home; (b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities; (c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him; (d) the provision for that person facilities for, or assistance in, travelling to and from his home for the purpose or participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements; (e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience; (f) facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise; (g) the provision of meals for that person whether in his home or elsewhere; (h) the provision for that person of, or assistance to that person in obtaining, a telephone and any special equipment necessary to enable him to use a telephone, then, subject to the provisions of section 7(1) of the Local Authority Social Services Act 1970 (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State)] [and to the provisions of section 7A of that Act (which requires local authorities to exercise their social services functions in accordance with directions given by the Secretary of State)], it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29.”
[12]Section 47 (1) of the NHS and Community Care Act 1990 states:
“Subject to subsections (5) and (6) below, where 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.”
[13]In England, directions have been issued pursuant to section 47 (4) of the 1990 Act prescribing some of the requirements of a community care assessment. Direction 2 of the Community Care Assessment Directions 2004 (“the 2004 directions”) requires authorities to consult the person being assessed and take all reasonable steps to reach agreement with them on the support that may be provided.[14]There is also guidance made under statutory authority. Prior to February 2010 (and during part of the time when the decision making process in this case was going on) that guidance, issued pursuant to section 7 of the Local Government Social Services Act 1970, was the “Fair Access to Care Services” (“FACS”) guidance. Important paragraphs of that guidance are as follows:
“2. A fundamental aspect of this guidance is for individual councils to make only one eligibility decision with respect to adults seeking social care support; that is, whether they are eligible for help or not. This decision should be made following an assessment of an individual’s presenting needs. Councils should not operate eligibility criteria for specific types of assessment; rather, the scale and depth of the assessment should be proportionate to the individual’s presenting needs and circumstances. Neither should councils operate eligibility criteria for different services to meet eligible needs. The most appropriate and cost effective help should be determined by matching services to eligible needs through the use of statements of purpose. … 28. Appropriate assessment lies at the heart of effective service delivery for a whole range of health and social care provision. Its purpose is to identify and evaluate an individual’s presenting needs and how they constrain or support his/her capacity to live a full and independent life. Councils should ensure that individuals are active partners in the assessment of their needs. … 42. Eligibility for an individual is determined following assessment. ... 43. Once eligible needs are identified, Councils should meet them. ...”
[15]After February 2010 the relevant guidance can be found in the document “Prioritising Need in the context of Putting People First: A whole system approach to eligibility for social care” (“the prioritising need guidance”). That is not to say that the guidance in FACS is redundant because the prioritising need guidance specifically indicates that FACS remains good practice to be followed.[16]Paragraph 19 of the prioritising need guidance states:
“Councils should ensure that each decision about a person's eligibility for support is taken following an appropriate community care assessment ... involving both the person seeking support and the people around them assisting with their care and choices. This assessment should be based on the individual's needs, following which planning for support should be undertaken to identify what outcomes the individual would like to achieve and how they might use the resources available to them to do so.”
[17]Paragraph 68 states:
“Given the necessity of prioritising needs for social care, fair and transparent allocation of available resources depends upon effective assessment. Decisions as to who gets Local Authority support should be made after an assessment, which should be centred on the person's aspirations and support needs involving both the person seeking support and their carers.”
[18]The guidance does not prescribe a form of assessment, stating instead at paragraph 69 that “the depth and breadth of the assessment should be proportionate to individuals' presenting needs and circumstances”.[19]At paragraph 43 of the guidance every Local Authority is expected to set its eligibility criteria for adult social care, following suitable consultation, according to four bands, namely, critical, substantial, moderate or low.[20]Following the enactment of the Health and Social Care Act 2001 the provision of support to meet assessed eligible needs can now be by way of “direct payments” rather than services provided directly by the local authority. Eligible individuals can insist on direct payments being made rather than receiving services if certain criteria specified in the regulations are met. Any direct payment made must be sufficient for the individual to purchase support that will ensure that his assessed eligible needs are met.[21]Section 57 provides, inter alia:
“Regulations may make provision for and in connection with requiring or authorising the responsible authority in the case of a person of a prescribed description who falls within subsection (2) to make, with that person's consent, such payments to him as they may determine in accordance with the regulations in respect of his securing the provision of the service mentioned in paragraph (a) or (b) of that subsection… (3) Regulations under this section may, in particular, make provision—(a) specifying circumstances in which the responsible authority are not required or authorised to make any payments under the regulations to a person [or in respect of a person], whether those circumstances relate to the person in question or to the particular service mentioned in paragraph (a) or (b) of subsection (2); (b) for any payments required or authorised by the regulations to be made to a person by the responsible authority (“direct payments”) to be made to that person (“the payee”) as gross payments or alternatively as net payments; ….. (4) For the purposes of subsection (3)(b) “gross payments” means payments— (a) which are made at such a rate as the authority estimate to be equivalent to the reasonable cost of securing the provision of the service concerned (my stress); but (b) which may be made subject to the condition that the payee [in the case of direct payments under subsection (1), or the beneficiary in the case of direct payments under subsection (1A),] pays to the responsible authority, by way of reimbursement, an amount or amounts determined under the regulations.”
[22]The prioritising need guidance requires services for individuals with eligible needs to be set out in a support plan the contents of which are set out in paragraph 121.[23]The guidance allows the authority to adopt a Resource Allocation System (“RAS”) to support the allocation of resources to meet assessed needs. At paragraph 129 the guidance states:
“The aim of the RAS should be to provide a transparent system for the allocation of resources, linking money to outcomes while taking account of the different levels of support people need to achieve their goals. It allows people to know how much money they have available to spend so that they can make choices and direct the way their support is provided.”
[24]Both the High Court and the Court of Appeal have recently considered a RAS which was, it is contended by the defendant, materially identical in its content and the way it was applied to the RAS that has been applied in this case. At first instance, in R (on the application of Savva) v Royal Borough of Kensington and Chelsea[2010] EWHC 414 (Admin), His Honour Judge David Pearl, sitting as a deputy High Court Judge, refused a declaration that the Defendant’s system for calculating care budgets, which was based, as a starting point, on a RAS, but which was simply part of the assessment process, was inadequate to discharge the statutory duty to provide care services adequate to meet an individual’s assessed needs.[25]The core of Judge Pearl’s judgment begins at paragraph 22. It is worth quoting in extenso as the Defendant’s case is that the procedure adopted by them is indistinguishable from that used by the Defendant in Savva: “...Mr Buttler relies on the House of Lords decision in R v Gloucestershire County Council and another, ex parte Barry [1997] AC 584. The issue in that case, is whether, under s 2 of the 1970 Act, a Local Authority was entitled to take account of its resources when assessing or reassessing whether it was necessary to make arrangements to meet an applicant’s needs. Mr Buttler draws from this case a two stage process. He says that the first stage is an assessment stage of an eligible need, and that this assessment can and indeed should include consideration of ‘relative needs’. However, it is Mr Buttler’s submission that Barry is authority for the proposition that once a person is assessed as having an eligible need, there is then an absolute duty to meet those needs and that to leave them unmet in part, would constitute a breach of statutory duty. 23. I have no doubt whatsoever that Barry is authority for the proposition that assessment of an eligible need is a relative assessment. Indeed, the declaration made by the House when allowing the appeal by the Local Authority in that case was that a Local Authority may take its resources into account when assessing or reassessing needs under section 2(1) of the Chronically Sick and Disabled Persons Act 1970. Lord Nicholls of Birkenhead said the following in his speech at 604: ‘Under section 2(1) ‘needs’ are to be assessed in the context of, and by reference to, the provision of certain types of assistance for promoting the welfare of disabled persons: home help, meals on wheels, holidays, home adaptation, and so forth. In deciding whether the disability of a particular person dictates a need for assistance and, if so, at what level, a social worker or anyone else must use some criteria. This is inevitably so. He will judge the needs for assistance against some standard, some criteria, whether spoken or unspoken. One important factor he will take into account will be what constitutes an acceptable standard of living today.’ Standards of living, however, vary widely. So do different people’s ideas on the requirements of an acceptable standard of living. Thus something more concrete, capable of being applied uniformly, is called for when assessing the needs of a given disabled person under the statute. Some more precisely defined standard is required, a more readily identifiable yardstick, than individual notions of current standards of living… In setting the standards, or ‘eligibility criteria’ as they have been called, the Local Authority must take into account current standards of living, with all the latitude inherent in this concept... The relative cost will be balanced against the relative benefit and the relative need for that benefit. 24. Lord Clyde draws a clear distinction between assessment of need and performance. He said: ‘Section 2(1) imposed a duty on the Local Authority to make welfare arrangements for an individual where they were satisfied that in the case of that individual it was necessary in order to meet his needs to make the arrangements. This was not a general but a particular duty and it gave a correlative right to the individual which he could enforce in the event of a failure in its performance...’ The right given to the person by section 2(1) of the Act of 1970 was a right to have the arrangements made which the Local Authority was satisfied were necessary to meet his needs. The duty only arises if or when the Local Authority is so satisfied. But when it does arise then it is clear that a shortage of resources will not excuse a failure in the performance of the duty. However neither the fact that the section imposes the duty towards the individual, with the corresponding right in the individual to the enforcement of the duty, nor the fact that consideration of resources is not relevant to the question whether the duty is to be performed or not, means that a consideration of resources is not relevant to the earlier stages of the implementation of the section which leads up to the stage when the satisfaction is achieved.25. I agree with Mr Buttler in his submission that Barry is authority for the proposition that resource issues are not relevant to the question whether the duty has been performed or not. Accordingly, the question that has to be answered in this case is whether the decision of the Local Authority panel to provide the Claimant with a personal budget of £170.45p constituted a discharge of their legal duty.26. Mr Buttler submits that the decision of the panel does not constitute a discharge of their legal duty. He submits that the manner in which the Defendant used the RAS tool is impermissible and cannot be used as a starting point, because it imposes an unlawful cap on the budget. I do not accept this submission.27. Counsel have drawn my attention to a Department of Health document ‘Resource Allocation Tool 2: Step by Step Guide’ (Gateway 9878, available at www.toolkit. personalisation.org.uk) which has as its sub-heading ‘A practical guide to developing resource allocation systems for personal budgets’. I have found this document very helpful. It illustrates that there are different approaches that can be taken to decide how a number of 'points' will translate into a personal budget. Two of the models can best be described as linear models which use either a fixed price per point, based on test sample costs; or a fixed price per point based on total current budget. Both of these models meet the needs of the service user in absolute terms, and so I understand it, Mr Buttler on behalf of the Claimant , has no quarrel with either of these approaches.28. He does contend, however, that the third model; namely the non-linear relationship between points and price based on current distribution of care packages (the relative approach) is unlawful.29. The RAS Allocation Analysis and Summary carried out by Symmetric (the Consultants who were responsible for developing the Defendant’s scheme in July 2009) was disclosed in Response to the Part 18 Request. This states that a new methodology has been developed to address issues underlying under-allocation and to provide a more sustainable alternative. The Report states that the approach is a relative approach which bases the percentile accorded to a SAQ score to its relative position against other SAQ scores for that user group.30. As I understand Ms Sackman’s submission, on behalf of the Defendant, if the use of a non-linear RAS tool had been the sole basis for the decision, then there would at least be a persuasive argument that the decision was unlawful. However, Ms Sackman submits that the RAS tool is not the sole basis for the decision, but it is simply a starting point in the assessment process.31. I agree with Ms Sackman on this point. The RAS has been championed by the Department of Health, and certain local authorities, so I understand, have been encouraged to develop RAS schemes as indicative tools in order to discharge their duty so as to meet all of the service users' assessed needs.32. The Defendant has not taken the indicative budget and said that that is the final figure. Rather, it has used a relative and non-linear approach, which it considers provides, as a starting point, a better reflection of the way in which care needs and costs are distributed to all those service users across the authority. Ms Sackman submits that the non-linear approach reflects reality. That may or may not be, but these are matters for the local authority. I agree with her in her submission that the use of the RAS by the Defendant is not unlawful, and I find against the Claimant in the first challenge to the Defendant’s decision.” ‘Under section 2(1) ‘needs’ are to be assessed in the context of, and by reference to, the provision of certain types of assistance for promoting the welfare of disabled persons: home help, meals on wheels, holidays, home adaptation, and so forth. In deciding whether the disability of a particular person dictates a need for assistance and, if so, at what level, a social worker or anyone else must use some criteria. This is inevitably so. He will judge the needs for assistance against some standard, some criteria, whether spoken or unspoken. One important factor he will take into account will be what constitutes an acceptable standard of living today.’ ‘Section 2(1) imposed a duty on the Local Authority to make welfare arrangements for an individual where they were satisfied that in the case of that individual it was necessary in order to meet his needs to make the arrangements. This was not a general but a particular duty and it gave a correlative right to the individual which he could enforce in the event of a failure in its performance...’[26]It should be noted that Judge Pearl held that the reasons given by the Defendant authority in Savva were inadequate and insufficiently transparent.[27]The Court of Appeal, [2010] EWCA Civ 1209, dismissed the Claimant’s appeal on the RAS point. At paragraph 7, having briefly summarised the statutory and regulatory framework, Kay L.J. said:
“It is axiomatic that local authorities do not have a bottomless pit of funds at their disposal. It is permissible for them to take account of the relative severity of individuals’ needs and the availability of resources when determining whether it is necessary to make arrangements to meet an individual's needs. However, once a Local Authority has decided that it is necessary to make such arrangements, it has an absolute duty to provide the individual with the services or the personal budget with which to meet the assessed needs: see R v Gloucestershire County Council, ex parte Barry [1997] AC 584”
[28]At paragraphs 16 to 18 inclusive, Kay LJ dealt with the submissions of the appellant on the RAS issue: “16. In this Court the ground of appeal in relation to the use of the RAS is expressed in these terms: ‘The Learned Judge erred in deciding that the [Council] were entitled to rely upon a figure generated by their Resource Allocation System, based on [Mrs Savva’s] need for community care services in relative terms, as the starting point for calculating how much money they would pay [her] for the purchase of community care services because section 2 of the 1970 Act and Regulation 14 of the 2009 Regulations requires an individual’s eligible needs to be met in absolute terms.’17. The submission is that because section 2 requires the eligible assessed needs to be met in absolute terms it is wrong for the Council even to consider what an individual’s needs are in relative terms or to use relative needs as the starting point for the calculation of the personal budget allocated to meet the individual’s needs.18. I do not accept this submission. It is very clear that the figure generated by the RAS was not used as anything other than a starting point or indicative allocation. It is, as the written submission on behalf of the Secretary of State for Health puts it, ‘the start rather than the end of the process’. I have already described how the process developed thereafter and how the FACE assessment and the earlier SAQ, when considered along with the RAS figure, resulted in the Panel determining an allocation of £170.45 per week as against the indicative RAS figure of £112.21 per week. Mr Brown’s second witness statement describes the process in more detail. I do not think it can be said that the Council ever lost sight of the fact that, once Mrs Savva’s eligible needs had been assessed, it was under an absolute duty to provide her with the services that would meet those needs or a personal budget with which to purchase them. The Council was entitled to use methodology recommended by the Department of Health which, in my judgment, did not have the effect suggested on behalf of Mrs Savva. It has never been suggested that the Department of Health’s guidance is unlawful. For these reasons, I consider that the Deputy Judge was correct to refuse a declaration that the RAS is an unlawful basis for determining a personal budget. Its deployment as a starting point was lawful.” ‘The Learned Judge erred in deciding that the [Council] were entitled to rely upon a figure generated by their Resource Allocation System, based on [Mrs Savva’s] need for community care services in relative terms, as the starting point for calculating how much money they would pay [her] for the purchase of community care services because section 2 of the 1970 Act and Regulation 14 of the 2009 Regulations requires an individual’s eligible needs to be met in absolute terms.’[29]The cross appeal by the authority against the first instance finding that inadequate reasons had been given was also dismissed and, again, the judgment of Kay LJ is relevant to the issues in this case:
“21. In many cases, the provision of adequate reasons could be achieved with reasonable brevity. In the present case, I would consider it adequate to list the required services and assumed timings (as was actually done in the FACE assessment), together with the assumed hourly cost. That would not be unduly onerous. I appreciate that some recipients require more complicated arrangements which would call for more expansive reasoning but if that is what fairness requires, it must be done. In the course of these proceedings it seems to have been suggested on behalf of Mrs Savva that the provision of adequate reasons would extend to every decision having to include an explanation of the Council’s RAS. That suggestion goes too far. Recipients and their advisers are entitled to know about the RAS but, as the Association's guidance recommends, this can be achieved by publishing the RAS on the Council’s website in a user-friendly format. 22. It is submitted on behalf of the Council that, if Mrs Savva wanted an explanation of how her personal budget had been calculated, she would have had every opportunity to seek and receive one after receiving the decision letter in the course of her meetings with her social worker or support broker. I do not accept that that would be sufficient. It is for the Panel to provide or approve the reasons in a document. Any other means of communication would lack the necessary authority and consistency.”
[30]Before moving on to the decision making process in this case and the grounds upon which it is contended it should be reviewed, it may be useful to outline my understanding of the system which the Defendant adopts to make provision for care needs.[31]Following the enactment of the 2001 Act and the possibility of making direct payments to those with care needs, there has, in fact, been a shift in the way in which many Authorities have undertaken the provision of adult social care.[32]Prior to the 2001 Act, Local Authorities would themselves take responsibility for putting together an individual’s care package, which would be made up of a variety of services prearranged by the Local Authority. The amount of funding a person received was largely determined as a function of the cost of the care package that the Local Authority created. Thus, not only was an individual’s funding linked to the services with which they were provided rather than directly to their needs, but there was very little room for allowing the individual the opportunity for deciding what he or she themselves would wish to achieve from their care package.[33]Following the possibility of direct payments Local Authority adult services departments have been strongly encouraged by central government to move to systems of what is termed “Self-Directed Support”. Under that system the Authority still carries out an assessment of an individual’s care needs and provides funding for the individual which must meet the needs of the individual as revealed by the assessment. However under the new system it is for the individual to decide how they wish to spend such funds.[34]Under this approach the level of funding is connected directly to the assessed needs of the individual rather than building up that funding by reference to specific services and the individual then uses the funding to create a care plan for themselves. A fundamental object is to empower those receiving care by giving them far greater choice and control over how funds provided for their care are actually used.[35]Local Authorities have had to develop methods to translate particular levels of need (not immediately calculable in financial terms) into appropriate levels of funding. One of those methods is the Resource Allocation System or RAS. There is a full explanation of the RAS system in the Defendant’s witness statement of Tracey Flack. The RAS used by the Defendant is called RAS 3. The system assesses levels of need both by means of a self administered questionnaire and by assessments by experts. Specific funding for those levels of need is achieved by comparing the actual funding on an average basis of most of those who are already being provided with funding for social care by the Authority. The correct working of the RAS scheme is checked by assessing whether funding allocated through the scheme has proved to be sufficient to meet the needs of those who have received the funding.[36]The type of RAS used by the Defendant and the way they use it was effectively identical to the type and method of use of RAS considered by the court in Savva.[37]Although the Defendant authority begins its system of self-directed support by assessing the needs of an individual by carrying out a care needs assessment, which assessment is normally carried out by the Defendant’s care managers and other social workers prior to any decisions as to funding, because of a dispute between the Claimant and the Defendant about the assessment and the allocation awarded, in an attempt to compromise, the Defendant agreed with the Claimant that the assessment of needs should be done by an independent person, in this case a Mr Crompton. His report is in the Claimant’s bundle at tab 2 pages 1 to 37. Mr Crompton is an independent social worker. The Defendant accepts and has accepted Mr Crompton’s assessment of the needs of the Claimant. However in an addendum to the report Mr Crompton set out the services and the cost of those services necessary, in his opinion, to provide for the Claimant’s needs. As a result, it was contended by those acting for the Claimant, that an award of £120,000 should be made to meet the Claimant’s needs. The Defendant has never accepted the opinion of Mr Crompton as to how the Claimant’s needs are to be provided or his assessment of the cost of that provision.[38]Once an assessment has been made the next step in the Defendant’s system is to determine what level of funding is required as an appropriate provision reasonably to meet the assessed care needs of the individual. The starting point in taking a funding decision is the carrying out of a RAS calculation. That calculation is a tool for determining an indicative level of funding. The result of the calculation is then checked against the individual's care needs assessment to ensure that the level of funding is sufficient reasonably to meet the individuals assessed care needs. The level of funding will be modified if it is too high or too low.[39]The RAS calculation is based on the answers given by an individual, often with the assistance of family, friends or even care managers, to a Support Questionnaire. That tool converts a particular level of need into a total score. A pre-set level of funding is awarded for each score based on the underlying comparison with the level of funding found to be sufficient to meet the needs, on average, of other persons receiving care provision from the Defendant.[40]The level of funding is indicative only and must be checked against the care needs assessment to make sure that it will reasonably meet the assessed care needs.[41]In this case, a support questionnaire (exh. CEB 17 to Ms. Bruin’s statement) was completed on behalf of the Claimant. It was completed before Mr Crompton made his assessment. It revealed that the Claimant’s needs in all the areas were critical ones. That entirely accorded with Mr. Crompton’s assessment and no adjustment to the questionnaire was, therefore, required. Thus, upon the feeding of the answers to the questions into the RAS, the highest level of indicative funding, namely £61,000, was allocated.[42]As Ms Bruin, the Service Director of the Defendant Council’s Adult Support Services, states at paragraph 32 of her witness statement, the fact that the maximum possible points had been scored meant that the council’s “Upper Banding Calculator” had to be used. Tracey Flack, the Strategic Resources Manager for the Defendant, explains in her statement that that calculator is a tool for producing a sum over and above the highest band in cases of exceptional need. It was she who developed this calculator and she explains at paragraph 28 that she determined what the common drivers were which pushed people into higher levels of need. At the time those appeared to her to be waking nights (a member of staff awake on duty at night), 2:1 care (two carers per person), the extra cost (that is a higher hourly rate) of a specialist provider and the extra cost of a specialist provider involved in 2:1 support.[43]She then obtained the costs of these drivers from the council’s contracts department and their price is depicted on the calculator itself. The calculator is not simply applied blindly but is used by a care manager, who exercises his or her professional judgment and experience to determine how much of each element is required, from which they determine the cost per year. That is then added to the sum generated by the basic RAS to give a total indicative amount.[44]The support questionnaire also includes a question in relation to each of the domains and generally as to how much care is provided by friends and family. Initially, JM, the Claimant’s mother and litigation friend, had indicated that he had no support from family and friends. In fact, as Mr. Crompton indicates in his independent assessment, the Claimant’s mother and siblings provide very significant support. As I understand it the “naturalistic” support was not taken into account when the basic RAS was calculated, though it was taken into account when the Upper Banding Calculator was used.[45]It is clear from the statements from the Defendant’s witnesses that the indicative level of funding was, in due course, checked against Mr. Crompton’s assessment of needs (rather than his assessment of proposed services to meet those needs). It was, as the court in Savva stressed should happen, the first rather than the last step in fixing provision. I am satisfied it was a tool which was used appropriately, in the same way as the RAS was used in Savva, to assess the needs of the Claimant and also to give a reasonable indication of what was necessary to meet those needs, an indicative budget, which was then used in comparison with the independent assessment of needs by Mr. Crompton, by the Defendant’s expert staff in determining whether the sum to be provided was adequate to meet the Claimant’s needs. The Arguments The Reasons Challenge

The Arguments

[46]The basis for the reasons challenge to the Defendant’s decision was effectively contained in the oral submissions of Mr Wise QC and summarised in his speaking note. He contends: i) that the Defendant has failed to provide an explanation setting out the services required to meet the Claimant’s needs, timings and assumed hourly costs, the minimum required by the Court of Appeal in Savva; ii) the decision-making process has been opaque and has lacked the necessary transparency required both by the common law and by the prioritising need guidance; iii) there has been no intelligible explanation for the figures provided, the lack of transparency and variation of the figures and explanations for the same figures, which leads to the conclusion that the decision-making process has been arbitrary.[47]It is worth noting that Mr Wise specifically eschews any attack on the lawfulness of the decision by the Defendant to adopt a RAS nor, he says, does the Claimant submit it is about the precise sums required to meet the Claimant’s needs. Those matters were certainly not obvious from the original skeleton argument.[48]A more extended chronology is set out in the speaking note and Mr Wise contended that the correspondence between the Claimant's representatives and the Defendant established the validity of the criticisms set out above.[49]In my judgment, it is entirely inappropriate to rely on indicative figures suggested by the Defendant to the Claimant other than the sum of £84,678, the basis for the challenged decision. It is faintly suggested in the chronology that a variety of figures cited there support an allegation of inconsistency or arbitrariness. That is simply untenable.[50]The statement of Charlotte Kirin in the Defendant’s bundle explained the earlier figures put forward. Paragraphs 20 to 24 demonstrate the justification for the earlier figures and show, in my judgment, that the early figures were based on the Claimant ’s being cared for in residential accommodation and an initial support plan by the Claimant ’s mother but that a process of negotiation was going on which in fact did not lead to any concluded agreement.[51]The process leading to the challenged offer of support begins in May 2009. On 19 May 2009 a new offer of £67,206 was made being the first offer that was made using the new RAS. The figure was based on the answers given in the support questionnaire completed by the Claimant’s mother. That questionnaire was reviewed by a social worker. It was, in fact, based, inaccurately as it turned out, on the statements by the Claimant’s mother that the Claimant was not in receipt of any family support. I accept that the Claimant’s mother and the family were under considerable strain at the time, but in fact, as Mr Crompton later found out, the Claimant’s mother and his family were in fact prepared to give substantial support to the Claimant and their very presence in the home was a significant matter. It is clear from the questionnaire at pages 36 to 38 that the Claimant was assessed as having the maximum needs under the RAS. Lyn Jenkins then used the Upper Banding Calculator to consider other needs above and beyond that assessed under the RAS. Her assessment was that the Claimant needed one half an hour of two to one specialist support per day (equalling £2566 at the rates which the Council considered on average such support could be obtained for) and two hours of specialist support per day (equalling £2912 and £728 - assessed on a similar basis). The assessment is set out at page 39 of tab 6 of the Claimant’s bundle.[52]That figure was communicated as an offer to the Claimant on 19 May 2009. It was rejected and in a letter before claim of 22 July 2009 detailed criticisms were made of the process leading to the offer of that figure. In particular it was contended that insufficient reasons were given for how that figure was reached. The Council responded in detail to that letter in a letter of 5 August 2009. Although this letter deals with only one component of the subsequent challenged offer it is my judgment that in paragraphs 1 to 10 of that letter and in particular numbered paragraph 5, referring as it does to the questionnaire and calculation document to which I have already referred at tab 6 pages 36 to 39, the Defendant gives adequate and clear reasons for its decision. It should be recognised that, when Lord Justice Kay referred to the necessity to list the required services and assumed timings together with the assumed hourly cost in the case of Savva (at paragraph 21) he was making specific reference to the facts of the individual case before the Court of Appeal.[53]The letter and documents sent in August 2009 made it clear that the maximum assessment of basic needs leading to an indicative basic amount of £61,000 had been reached on the basis of the support questionnaire and the application of the RAS. As far as the Upper Banding Calculator figures were concerned both rates and hours were actually given. Lord Justice Kay considered that the suggestion in Savva that an explanation of the RAS should be given went too far. Thus, the absence of a detailed explanation as to the workings of the RAS at this stage would not, in my judgment, have been fatal had this been the end decision. I do not consider it correct to call either the process or the explanation of the process opaque, as does Mr Wise. In my judgment this letter, the process and the documents disclosed by the letter adequately meets the prioritising need guidance at paragraph 132. The decision-making process was not arbitrary.[54]Mr Wise criticises the Defendant for failing to provide an explanation setting out the services required to meet the Claimant’s needs. That appears to me to be a complete misunderstanding of the system of self-directed support. Both the RAS and the Upper Banding Calculator, compared as they were with the assessment and operated using the skill and experience of social workers, were assessment of needs and not services but the RAS was a tool for translating needs into a sum which was adequate to provide the services for those needs by reference to the average costs of the provision by the authority of meeting those needs for other disabled people.[55]The efficacy of the RAS in that translation process was checked by the authority and the figures in each individual case that were produced by the RAS and Upper Banding Calculator were also checked against assessments of the Claimant’s needs and the experience of social workers. The self-directed support system, however, was designed to provide a sufficient sum to meet the Claimant’s needs but it was up to the Claimant and his advisers to determine how to spend that sum.[56]Criticism of the Council for failing to provide an explanation setting out the cost of the services required to meet the Claimant’s needs wholly fails to recognise how the self-directed support system works. The failure to recognise that characterises almost all of the correspondence from the Claimant’s advisers. They were assiduous and persistent but they were consistently at cross purposes with the Defendant because of their failure to appreciate how the scheme worked. Savva indicates that the use of such a scheme, assuming that it is checked properly against an assessment of the Claimant’s needs, cannot be criticised and the Claimant’s representatives have, as a result of Savva, been driven eventually in these proceedings to accept that it cannot.[57]In fact, both the Defendant and the Claimant’s representatives attempted to compromise the dispute between them. The Defendant, in its letter of 5 August 2009, offered to fund a reassessment of the needs of the Claimant by an independent social worker. That offer was accepted and Mr Crompton prepared his report, “Care Needs Assessment”, which can be found at tab 4 pages 1 to 28. That assessment was accepted by the Defendant and remains accepted by them.[58]However, Mr Crompton then produced an addendum report, tab 4 pages 29 to 37, which report is an assessment of the services which he assesses as necessary to meet the needs of the Claimant and the costs of provision of those services. The Defendant has never accepted Mr Crompton’s assessment of the services or cost of those services. There is, in the various statements provided by the Defendant, cogent criticism of the need for the services set out in the addendum report. The Defendant has argued, in my judgment properly, that the services proposed by Mr Crompton are unnecessary to meet the needs of the Claimant and that the cost of providing services which are necessary to meet the needs of the Claimant, as assessed by Mr Crompton are unnecessarily high. In my judgment, there is an adequate factual justification for those criticisms and the view that the Council has taken of those matters cannot be criticised as irrational. However, the main justification for rejecting Mr Crompton is that it is fundamentally contrary to the self-directed support system to build up a figure for care provision starting with services as opposed to the system properly operated by the Defendant, which starts with needs.[59]In their letter of 5 January 2010, the Council agrees the assessment of needs and agrees, in particular, that the Claimant required one-to-one support. They pointed out that that was already provided for in the calculation of the indicative personal budget. To criticise the Council’s assessment of the average amount necessary to meet that need would be to descend to a merit based criticism of their decision. There was, in my judgment, ample material for them to reach the figure that they did, using the RAS.[60]The Council did not consider that the listed hourly rate of £18 for a support worker was realistic and pointed out that they offered an hourly carer rate under its direct payment calculations of £14.68. They calculated that the indicative amount based on one-to-one care at the Upper banding level and taking into account specialist care provision should be £84,678 per annum. They asked that the Claimant’s representatives consider that the Claimant’s assessed need for one-to-one care could be fully met at an hourly rate of £14.68 at a maximum total annual cost of £75,015. That would allow the Claimant to use the remaining minimum of £9,663 on social, leisure and therapeutic activities of his choice.[61]The Claimant’s representatives persistently thereafter attempt to find out how the £9,663 was reached. The explanation was that the Defendant had recalculated its assessment of needs using the RAS and the Upper Banding Calculator, basing the assessment of needs on Mr Crompton’s accepted assessment and had reached the figure of £84,678. They were pointing out in their letter of 5 January 2010 that one-to-one provision of care at what they assessed to be a reasonable cost could be met within that figure leaving £9663 for the Claimant to spend on social leisure and therapeutic activities. However, that was not the way that they had reached their indicative figure. It is wrong, in my judgment, to contend that the explanation in this letter demonstrates that the Council had not been concentrating on the assessment of needs.[62]It should be recognised that the Council had, very properly, put in place on an interim basis the original offer of £67,000 and then the £84,678 per annum, pending the resolution of the dispute between the parties and, ultimately, these judicial review proceedings. I am not entirely clear that that interim provision was known to the Court when a rolled up hearing was ordered. The interim provision certainly reduced the urgency of the claim for judicial review.[63]The parties agreed to mediation of their dispute but that was not successful. In their letter of 26th February 2010 the Council did give hours and rates for the £75,015 figure which they contend was sufficient to meet the Claimant’s need for one to one support. However, that was not the basis of their indicative figure, which figure had been reached by means of the RAS calculation, which had not been altered but rather confirmed by Mr. Crompton’s assessment, and the Upper Banding Needs Calculator, again operated based on Mr Crompton’s assessment and the independent assessment of an experienced social worker, working out the indicative figures for the provision of the Claimant’s needs from the Defendant’s judgment of the cost of providing those needs. There was, I am satisfied from the Defendant’s evidence, material upon which those assessments could properly be made by them and their judgment on those issues cannot sensibly be described as irrational.[64]The letter of 26th February contains a reasoned and detailed criticism of the assessment by the Claimant’s representatives of the needs of the Claimant and of the services and cost of those services contended to be necessary to meet those needs. It is clear that the Claimant’s representatives have never accepted the validity of those criticisms but this is not a merits based appeal. It was submitted that (see page 37 of tab 5) the statement “The Local Authority’s position is that it does not provide for the funding of holidays within its self directed support calculations” is unlawful having regard to section 2(f) of the 1970 Act (not an allegation raised in the grounds – mentioned for the first time, in fact, in Mr. Wise’s speaking note). In fact, subsection (f) requires the authority, where satisfied that it is necessary to meet the needs of the relevant person, to make arrangements for “facilitating the taking of holidays by that person…” not to provide a holiday and the authority’s provision of a sum which is sufficient, for example, to provide one to one care, plainly would facilitate the taking of a holiday by the Claimant. In any event, the self directed support system allows the Claimant and his advisors to determine what they will spend their support package on and it is, again, a misunderstanding of that system to approach the funding from the service provision end rather than working from needs.[65]In their letter of the 26th March 2010 the Defendants enclosed the RAS banding calculator for self directed support. They explain that they accept that on the basis of Mr Crompton’s assessment the Claimant had high and complex needs and that he was at the highest point of the RAS banding. They therefore pointed out that the basic award was £61,000.[66]The next paragraph of the letter is worth quoting in full:
“The Local Authority will provide a higher indicative amount for its clients than the RAS banding when it is of the view that specialist care provision is necessary to meet assessed need, or the RAS banding indicative amount is insufficient to meet assessed need. In [K’s] case, the Local Authority has taken into account an independent assessment of need and service provision rather than using a support questionnaire to inform its RAS banding calculation. Notwithstanding this the Local Authority is of the view that £61,000 is insufficient to meet [K’s] need for one-to-one support and has therefore based its proposed indicative amount on the anticipated maximum annual cost of the level of specialist one-to-one care necessary to meet [K’s] assessed needs (£75,015). The final figure of £84,678 is an amount which the Local Authority believes is sufficient to allow [K] to fully meet his assessed needs including his need for social, leisure and therapeutic activities. We set out the local authority’s position in respect of this particular need fully in our letter of 26 February 2010”
[67]Mr Auburn, for the defendant, not only submits that this letter, in setting out in clear terms the reasons for offering the final figure of 84,678, is compliant with the guidance given by Lord Justice Kay in Savva but it is also entirely compliant with the much quoted summary of the authorities governing the proper approach to a reasons challenge (albeit in the planning context) by Lord Brown of Eaton-under-Heywood in South Bucks DC v Porter[2004] 1WLR 1953 at 1964:
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
[68]In my judgment, Lord Brown’s summary can be appropriately applied to the context of this case and, even if no further reasons have been given by the Defendant, the reasons in this letter would have been both intelligible and adequate. The reasons were being directed to the experienced solicitors for the Claimant and it cannot be said that these reasons were opaque. In my judgment the RAS calculations and the explanation of them were compliant both with the FACS guidance and with the prioritising need guidance.[69]In their letter of 29 March 2010 the solicitors for the Claimant ask for the algorithm on which the RAS banding document was based. On the basis of Lord Justice Kay’s decision in Savva that explanation was unnecessary but it was later given in detail by the Local Authority in their document “Response to Mediation Agreement: Resource Allocation System (RAS)” (pages 72 to 75). I consider that that was far more than they needed to do.[70]Whether or not the Claimant and his representatives agreed with the approach or the assessment of needs by the Authority it is, in my view, completely unarguable that proper reasons have been given and I consider that the three criticisms at the start of Mr Wise’s speaking note, which are it seems to me as close to the final grounds for this claim in relation to the reasons challenge as can be discerned, are entirely unfounded.[71]I should indicate for completeness sake that I entirely agree with Mr Auburn’s arguments in paragraphs 1 to 20 of his speaking note.

The Rationality Challenge

[72]As to the rationality challenge, that may be disposed of even more briefly. The starting point ought to be that it is clear that the use of a RAS like that used by the authority is permitted by the guidance and has been approved, if used as a starting point and compared with an assessment of needs, as it has been here, in the Savva case. The Claimant has conceded that. The RAS, as far as an initial assessment is concerned, is an appropriate way of estimating the reasonable cost of meeting assessed needs. It is absolutely essential that at some stage in the process of care provision, resources must be taken into account. That is recognised both in Savva and in R. v Gloucestershire County Council and another, ex parte Barry[1997] AC 584.[73]Although in this case the Local Authority has, in responding to correspondence from the Claimant’s solicitors descended into debate about the cost of various services, mainly because the Claimant’s solicitors have in my judgment persistently approached this case attempting to build up care provision from the cost of services rather than concentrating on need, it is clear that the Defendant has always taken as its primary basis for care provision the assessed need of the Claimant. The RAS calculation is an appropriate tool for making a basic assessment of the reasonable cost of meeting the Claimant’s needs and the upper banding calculator was used by experienced social workers, always having in mind the assessment of needs by Mr Crompton in their assessment of the reasonable cost of providing for the Claimant’s needs.[74]The self-directed support system permitted, and, indeed, encouraged by the guidance, means that the authority never had any intention of organising the actual services which would provide for the Claimant’s needs. That was always for the Claimant to decide and organise. There was here an element of compromise and the calculated total was an indicative offer within which the Claimant was invited to create a support plan. A final decision as to the amount of the direct payment would not be made until a support plan satisfying all the Claimant’s assessed needs had been agreed. The calculations made with the assistance of the RAS and the upper banding calculator were checked using the exercise of professional judgment by the Defendant’s experienced staff. Criticism of that exercise of judgment is, in this case, clearly in my view, a disguised merits challenge.[75]I agree with Mr Auburn’s submissions that there is a very high threshold for a rationality challenge and I am completely satisfied that there was an ample basis for the judgments made by the Defendant as to the amount needed to satisfy the Claimant’s assessed needs.[76]In my judgment, both the reasons challenge and the irrationality argument are unsustainable and, I am quite clear, unarguable. I refuse permission.

Cited in 2 later judgments