Savva, R (on the application of) v Royal Borough of Kensington and Chelsea [2010] EWHC 414 (Admin)

[2010] EWHC 414 (Admin)Case No CO/534/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/03/2010
Before
His Honour Judge David Pearlsitting as a Deputy High Court Judge
Between
The Queen on the application of RAFAELA SAVVAClaimantROYAL BOROUGH OF KENSINGTON AND CHELSEADefendant
Mr Christopher Buttler (instructed by Hansen Palomares) for ClaimantMs Sarah Sackman (instructed by Legal Services, Royal Borough of Kensington and Chelsea) for DefendantHearing Hearing dates: 17 th and 18 th February 2010
Judgment
[1]The Claimant in this judicial review application is a lady of 70 years of age who lives in the Royal Borough of Kensington and Chelsea. Her health is not good and I am told that she suffers from diabetes, heart and respiratory problems, and is arthritic with poor eyesight. She suffered a stroke some 10 years ago, and she has been in receipt of care services from the Local Authority since that time. She lives in a basement flat in the Borough. She is unable to leave the flat unassisted. Indeed I was told by her Counsel that she has only left the flat once in the past twelve months, apart from hospital appointments. She was hospitalised from 6th – 13th November 2009, when she was discharged back to her basement flat. She is unwell at the present time with pneumonia.[2]The challenge in this case relates, in general terms to the Defendant’s system for the administration of community care services, whereby those who are assessed to be eligible for support to meet care needs are provided with a personal budget to be spent on meeting their needs in the way that they choose. More specifically, the challenge relates to the decision made on 21st December 2009, and communicated on 22nd December 2009, to provide the Claimant with a personal budget of £170.45p per week.[3]Sir Michael Harrison, sitting as a Judge of the High Court, made an Order on 19th January 2010 that the claim shall be determined at a “rolled up” hearing.[4]The first matter that I need to decide is whether to grant permission. I have decided that the appropriate approach to take in this case is as suggested by Sullivan J (as he then was) in the case of The Queen on the Application of Vetterlein v Hampshire County Council and Hampshire Waste Services Ltd [2001] EWHC Admin 560. In that case, Sullivan J said:
"…I am satisfied that all the arguments open to the claimants on matters of fact and law have been placed before the Court. In the circumstances it would be wholly artificial to consider the by now academic question: is the claimant's case arguable? …I am in a position to determine the substantive application for judicial review on its merits."
Applying this approach, I therefore grant permission.[5]It is not necessary in this case to recount any facts relating to the Claimant prior to the summer of 2009. The facts subsequent to the summer of 2009, which are of relevance, are as follows. On 20th July 2009, the Claimant completed a Personal Budget Supported Self-Assessment Questionnaire (SAQ). This was completed with the support of her Social Worker. Page 1 of this document states:
“Once the form is completed we will let you know as soon as possible if you are eligible for support. If you are, we will tell you how much funding will be available to help meet your needs, taking into account any contribution you need to make. You can then use this information to help you to develop a support plan, with the help of a professional and/or those who are close to you. This plan will tell us how you wish to use this funding to meet your individual needs and objectives.”
There then follows an ‘N.B.’ “The supported self-assessment is a tool in continuous development and does not guarantee any particular allocation of funding.”[6]The 20th July 2009 SAQ resulted, in Mrs Savva’s case, in an allocation of a ‘points score’ of 16 points under a formula known as the Resource Allocation System (RAS). A helpful description of the RAS appears in Appendix 1 (Glossary) to a document ‘Common Resource Allocation Framework’ dated October 2009 produced by the Directors of Adult Social Services. It defines the RAS in this way:
“A clear and rational way to calculate how much money a person is likely to need to arrange support. This helps the person understand how the amount of money has been arrived at, and to make choices and direct the way their support is provided.”
[7]The Response by the Defendant to the Part 18 Request by the Claimant describes the RAS in a not dissimilar way:
“The RAS tool is a mathematical tool which has been promoted by the DH and adapted for use by the Council. The rationale behind the tool is to ensure objective consistent needs-based decision making in the context of community care. The RAS tool is designed to help the Panel in its analysis. It generates an indicative budget only.”
[8]When the 20th July 2009 RAS was translated into a monetary value, it came to £82.91p per week. The funding was adjusted to £132.56p, and this was then increased to £170.45p.[9]The Claimant completed another SAQ on 19th November 2009, after her discharge from hospital. At the same time, the assigned Social Worker began work to produce a detailed Functional Assessment of Care Environment (known as a FACE Overview Assessment). This document sets out the details of the services provided, and, for example, it makes particular comments on diet and nutrition. These comments are worthy of repetition:
“Mrs Savva states she can only eat fresh products due to her heart condition and diabetes. She reports that she has always eaten fresh food and it is very important to her to be able to maintain this. She prefers to eat food such as fresh fish, meat, vegetables and fruit. She feels that for this reason she needs shopping to be done on a regular basis. Mrs Savva would prefer shopping to be done on a daily basis.”
[10]The Social Worker observes a decline in skills from the last time that Mrs Savva had been assessed, but, notwithstanding that decline, she assessed her level of functioning as not to have changed since her hospital admission. She states that she felt that her personal budget could be used in a more effective way to ensure that her daily living needs were met. She places the categories of “managing personal and daily tasks” and “health and safety”, however, within the four bands of care risk as “substantial”, the second highest.[11]The Resource Allocations Panel (Mr Thomas Brown, the Head of Assessment, Adult Social Care) and Ms Gretta Mulrooney (Team Manager, Older People Care) met on 21st December 2009 to consider a new personal budget allocation. The “indicative budget” generated by the November 2009 RAS, when translated from a points score of 28 points to a monetary value, amounted to £112.21p. This sum, of course, was an increase from the £82.91p generated subsequent to the July SAQ. This sum was then adjusted to £142.02p per week.[12]What then happened, according to the explanation in the Defendant’s grounds for Resistance, was that after:
“analysing the claimant’s needs in the round, the panel considered that the ‘indicative budget’ of £142.02p per week was too low and did not properly meet the Claimant’s needs particularly in terms of meal preparation. Therefore, the panel increased the indicative figure and allocated a weekly budget of £170.45 to the Claimant.”
[13]It is this decision that is challenged in these proceedings.

The grounds for challenge

[14]Mr Buttler, on behalf of the Claimant, summarises the Claimant’s case in his skeleton argument dated 14th February 2010 by way of three submissions:(i) The Defendant’s system for calculating budgets is inadequate to discharge the statutory duty to provide care services adequate to meet an individual’s assessed needs;(ii) The Defendant’s reasons were inadequate to discharge the duty to provide adequate reasons for the decision to allocate the Claimant a personal budget of £170.45p per week;(iii) The Defendant assessed the Claimant’s needs to have increased substantially between July 2009 and December 2009, yet decided to keep the personal budget constant, at £170.45p per week. It is submitted that, in the absence of a proper explanation, this is irrational.[15]I deal with each of these challenges in turn. The Defendant’s system for calculating budgets is inadequate to discharge the statutory duty to provide care services adequate to meet an individual’s assessed needs.[16]The underlying statutory provisions are, first, s 2(1) of the Chronically Sick and Disabled Persons Act 1970. This states: “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 all or any of the following matters, namely…. [provision of certain types of assistance] Then…it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29”. [provision of certain types of assistance][17]The next statutory provision is s 47(1) of the National Health Service and Community Care Act 1990. This provision states:
“...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.” (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.”
[18]Section 46(3)(a) of the National Health Service and Community Care Act 1990 defines “community care services” as services which a local authority may provide or arrange to be provided under a number of provisions, including Part III of the National Assistance Act 1948 (which includes section 29 of that Act).[19]The Health and Social Care Act 2001 introduced a system of Direct Payments. Section 57(1) states that Regulations may make provision for and in connection with requiring or authorising the responsible authority to make such payments as they may determine in accordance with the Regulations. Section 57(2) states that a person falls within the subsection if a local authority have decided (a) under section 47 of the 1990 Act, that his needs call for the provision by them of a particular community care service.[20]The relevant Regulations are the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009 [SI 2009/1887)] that came into force on 9th November 2009. These Regulations revoke and replace earlier Regulations. It is apparent that by virtue of Regulation 14(1), the fact that a local authority makes direct payments shall not affect their functions with respect to the provision under the relevant enactment to which the payment relates.[21]Thus Mr Buttler submits that there is a duty to assess need under s 47(1) of the National Health Service and Community Care Act 1990 and that once the eligible need has been assessed, there is a duty on the local authority under s 2 of the Chronically Sick and Disabled Persons Act 1990 to meet those needs in their entirety. Further, the duty under s 2 is not discharged by the making of a direct payment unless that payment is sufficient to purchase services to meet the assessed needs in absolute terms.[22]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 subheading ‘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. The Defendant’s reasons were inadequate to discharge the duty to provide adequate reasons for the decision to allocate the Claimant a personal budget of £170.45p per week[33]No reasons were given in this case. The Senior Lawyer for the Authority wrote to the Solicitors on behalf of the Claimant on 22nd December 2009 as follows:
“I refer to our conversation on the telephone yesterday and now confirm that I have been advised that the panel has decided that Ms Savva’s current allocation should remain the same, namely £170.45 per week. This allocation will of course remain reviewable by my Authority’s adult social care department.”
[34]Both Counsel are agreed that there is no statutory duty contained in the applicable legislation to give reasons for the decision. Ms Sackman would distinguish South Bucks District Council and another v Porter (no 2) [2004] UKHL 33 as that case was concerned with Town and Country Planning legislation where there is a requirement under the relevant Rules for the Inspector to notify his decision and “his reasons for it, in writing.” It is indeed the case that it was in the context of that legislation that Lord Brown said:
“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...”
[35]She then submits that the Council has now disclosed all of the evidence on which it based its decision, and the Claimant has the benefit of two witness statements from Mr Brown, who of course was the Chair of the Panel. The second witness statement of Mr Brown was filed on the first day of the hearing, and I agree with Mr Buttler that I should to an extent treat it with caution, given that it was produced during the course of litigation. Mr Brown states that the July indicative budget was in retrospect a rather generous one and went quite a bit further than simply meeting Mrs Savva’s assessed needs:
“The Council being aware of its ongoing relationship with a duty to provide care to Mrs Savva wanted to demonstrate that it valued her perception of her care needs which was reflected in this generous personal budget.”
[36]He goes on to say that the fact that there was sufficient resources in the July 2009 personal budget to allow for 3 to 3½ hours/week to be spent on shopping as well as for all other care needs to be met, indicates the generosity of the budget. He says that her assessed needs do not, in his view, require 3 to 3½ hours of care time to be taken up by shopping every week.[37]He concludes by stating that the fact that Mrs Savva’s needs score was higher in the November SAQ than it had been in the July SAQ would not necessarily translate into a higher monetary allowance in the personal budget. This is because, first the July budget had been a generous one, and secondly, certain needs do not attract any or any significant extra costs, and that by spending the same money in a different way, increased needs can be met.[38]I believe that there is a clear policy to provide service users with clear information about how personal budgets are arrived at. It must be remembered that the whole concept of personal budgets was introduced in England under the policy referred to as “Putting People First” (Putting People First: A shared vision and commitment to the transformation of Adult Social Care (2007) DH 081118). The Local Authority Circular (LAC (DH) (2008) Transforming Adult Social Care states that personal budgets should become the norm for people who are eligible for an on-going package of personal care. It states:
“Everyone eligible for statutory support should have a personal budget – a clear, up-front allocation of funding to enable (people) to make informed choices about how best to meet their needs, including their broader health and well-being.”
[39]The Directors of Adult Social Services in their document “Common Resource Allocation Framework” dated October 2009 state that ‘up-front allocation’ means that the person is told, before a support plan is agreed, roughly how much money is likely to be required to fund such support. The same document emphasises ‘Transparency.’ It says that the RAS should be transparent, which means being clear how decisions are made and making the system public. This guidance from the senior social workers in this field provides support for the view that policy in this area favours a transparent approach which provides service users with clarity on how decisions are made prior to a support and care plan being agreed.[40]The Department of Health in the Resource Allocation Tool 2 (Gateway ref 9878) makes a similar point. It strongly advises authorities to keep the RAS “as simple and transparent as possible.” In its consultation document, Guidance on Eligibility Criteria for Adult Social Care, England (2009), the Department states that the aim of the RAS should be to provide a transparent system for the allocation of resources. The Guidance on Direct Payments (2009) published jointly by the Department of Health and the Department for Children, Schools and Families makes much the same point.[41]Thus, although there is no statutory duty to give the reasons why a Panel arrives at a particular monetary personal budget, all of the documents produced by the Government Departments and by the Association of Directors of Social Services point to transparency, openness, and consultation, prior to the drawing up of an agreed Care and Support plan.[42]Three cases support the requirement for there to be reasons given by a Panel that is making a decision relating to a personal budget, and the provision of direct payments under s 57 Health and Social Care Act 2001 in discharge of its duty under s 2 of the Chronically Sick and Disabled Persons Act 1970.[43]The first case is R v Gloucestershire CC exp Radar [1998] 1 CCLR 477, a decision by Carnwath J (as he then was) which dealt with the reassessment made by the Council in that case in relation to the Chronically Sick and Disabled Persons Act 1970. This case was decided subsequent to the decision in R v Gloucestershire CC ex p Mahfood and others (1996) 8 Admin LR 181. That earlier case had ruled that a local authority was not entitled to remove or reduce services without reassessment. Carnwath J held, in Radar, that it is not sufficient for an authority to discharge its duty by writing letters to those affected or potentially affected and offering them reassessment. He went on to say:
“In some areas of the law that might be an adequate response, where those affected can be assumed to be capable of looking after their own interests, and where silence in response to an offer can be treated as acceptance or acquiescence. However, that approach is not valid in the present context. The obligation to make an assessment for community care services does not depend on a request, but on the appearance of ‘need.’”
[44]Although that case is dealing with a different scheme to the present one, it would seem to me to be analogous. The duty of the local authority under s 2 of the Chronically Sick and Disabled Persons Act 1970 can be discharged by direct payments. The personal budget must be sufficient to purchase the services and is needs-led, and it seems to me that the only way in which a service user can be satisfied that the personal budget has been correctly assessed by the Panel is by a reasoned decision letter. The observation of Carnwath J in Radar that service users cannot be assumed to be capable of looking after their own affairs in the context of assessment issues identified in that case, is equally of relevance in the present context.[45]The next case to consider is R v Islington LBC ex p Rixon(1998) 1 CCLR 119 (a decision of Sedley J as he then was). This was another case where the local authority regarded lack of resources or facilities as an insuperable obstacle to any further attempt to make provision under the 1970 Act. Sedley J decided that decisions taken by the authority in relation to the claimant in that case were unlawful because the authority had departed from the relevant Policy Guidance without any good reason articulated in the care plan or, at least, in the course of some identifiable decision-making process. He said:
“...if this statutory guidance is to be departed from it must be with good reason, articulated in the course of some identifiable decision-making process...”
[46]That principle is directly applicable in the present context, and the problem of course, in this case, is that a reading of the letter from the authority, which states that the Panel has kept the allocation at the same personal budget, provides no indication whatsoever as to why the Panel arrived at this decision.[47]The third case which was referred to me by Mr Buttler is R (on the application of Eisai Ltd) v NICE and others [2008] EWCA 438, which deals with other matters, but which makes a number of general points about the necessity for reasons, and the ability of the Courts on an application, to quash that decision if reasons are not readily apparent. The issue in that case was procedural unfairness, and the claimant pharmaceutical company argued that the consultation process was unfair because of a failure to provide the fully executable model (required in that case). The Court decided that in this situation, the consultee “is left making shots in the dark, in circumstances where the light could so easily be switched on.”[48]Mr Buttler, correctly in my view, draws an analogy with Eisai to this case. In Eisai, an intelligent response is limited because of the failure to release the fully executable version of the model. Likewise, in this case, without being able to properly understand the use made of the RAS, the service user and anyone acting on her behalf, is left totally in the dark as to whether the monetary value of £170.45 is adequate to meet the assessed need of a 28 point score. The process of conversion made by the Panel is not explained to the service user. It should have been underpinned by an evidential base, and it was not.[49]Ms Sackman submits that there is no general common law duty to give reasons made by public authorities. However, she acknowledges that a contextual analysis would indicate the requirement for reasons in certain cases. She says however that this is not one of them. I do not agree with her. Just as in all three of the cases referred to in the preceding paragraphs, the Defendant has specific statutory duties. Just as in all of the cases referred to, the Defendant must comply with these duties in a transparent way, explaining with sufficient clarity that the decision making is evidence based. I do not accept Ms Sackman’s submission that just because the direct payment scheme is an ongoing process requiring a continuing dialogue, that it is sufficient for the reasons to be reflected in the Care Plan, and communicated to the service user via the social worker and the support broker.[50]She submits that to decide otherwise would be unduly burdensome to local authorities. Again, I do not accept that such an argument can negate the requirement for reasons. The production of the support plan and the care plan, in my view, is too late for the Claimant to be provided with reasons for the budget. If Ms Sackman is correct, then the reasons for the July decision do not appear in print until the Support plan made available in December. That cannot represent an adequate discharge of the obligation on a local authority to explain the reasons for its decision in this area in a transparent manner.[51]Personal budgets are new and in many ways represent a fundamental shift in community care. It must be incumbent on those responsible for this provision, to be transparent, and to explain individual decisions in a precise and clear manner. I fail to see how such an obligation would be unduly burdensome.[52]This case is very different from Alletta Nash v Chelsea College of Art and Design [2001] EWHC Admin 538. In that case, Stanley Burnton J (as he then was) said that “it is one thing to require comprehensiveness and clarity from lawyers and those who regularly sit on administrative tribunals; it is another to require those qualities of occasional non-lawyer tribunal chairmen and members”[53]But that was a case where the dispute apparently had only marginal effect on Ms Nash’s final degree and her future career. The case was concerned to a large extent with whether to accept subsequent reasons, but the case supports the general proposition of administrative law that the degree of scrutiny and caution to be applied by a Court should depend on the subject matter of the administrative decision in question. The administrative decision in question in this case falls within the series of cases represented by Radar, Rixen, and Eisai; whereas Nash falls close to the other extreme of the spectrum.[54]I deal with the submissions made to me regarding Article 6 of the EConHR at the end of this Judgement. The Defendant assessed the Claimant’s needs to have increased substantially between July 2009 and December 2009, yet decided to keep the personal budget constant, at £170.45p per week. It is submitted that, in the absence of a proper explanation, this is irrational.[55]Given my decision on the reasons challenge, it is really not necessary to make a finding on Mr Buttler’s third submission, namely a rationality challenge that the decision to allocate £170.45p was one that no reasonable panel would have taken. The RAS score from July 2009 to November 2009 indicated a 75% increase. Mr Brown has in his second witness statement suggested that the July score was a generous one. But there is no evidence to show that the Panel (made up of Mr Brown and one other) took that into account when they considered the personal budget of Mrs Savva on 21st December .[56]To succeed on a rationality challenge, the Claimant would have to demonstrate that the Panel acted in a manner that was not reasonably open to it. It is a high threshold. I have decided that the Claimant has failed to discharge this high threshold. It is true that there is no evidence, other than Mr Brown’s second statement which I have decided to treat with some caution given that it was produced on the first day of the court proceedings, as to why the Panel did not reflect the change in the point score in an uplift to the personal budget. However, this is really a reformulation of the reasons challenge. I have decided that challenge in the Claimant’s favour.[57]I have not had produced to me any evidence to suggest that the decision of the Panel on 21st December was a decision that no reasonable Panel could have arrived at. I agree with Ms Sackman that arriving at the appropriate personal budget is, in her words, an art rather than a science. It may well have been the correct decision. It may well have not been correct. It can be challenged on lack of reasons; but not irrationality.

Article 6 submissions

[58]I turn, finally, to submissions made by both Counsel in relation to the relevance of Article 6 of the European Convention on Human Rights. It is not necessary for the decision in this case to make any findings in relation to these submissions as I have held that there is in this case a common law duty to provide a reasoned decision because procedural fairness requires it, and no such decision was produced.[59]However, for the benefit of Counsel, it may be of some use if I were to express an opinion on the submissions that both Counsel have helpfully made.[60]Mr Buttler submits that, for five reasons, there is a duty to provide reasons pursuant to Article 6. He states:(i) It is accepted that the determination by the social worker of whether the Claimant was eligible for support did not fall within the ambit of Article 6;(ii) However, once the social worker had assessed the Claimant in this case to have eligible needs, the Defendant had an absolute duty to provide funding for services. At this point, the Claimant became the holder of an individual right to a personal budget (i.e. a monetary payment) from the Defendant;(iii) It then fell to the Panel to determine the amount of the monetary payment; and this is to be distinguished from A v Croydon [2009] 1 WLR 2557, which concerned a benefit in kind. In determining the amount of payment, the Panel were determining a “civil right” within the meaning of Article 6;(iv) Article 6 guarantees a duty to provide adequate reasons for the decision: e.g. Hirvisaari v Finland (2004) 38 EHRR 7;(v) In the case of the Defendant’s RAS, the ordinary judicial review procedures would be sufficient to render the process compliant with Article 6, but only if the Administrative Court has access to the reasons of the Panel.[61]Ms Sackman submits that Article 6 adds nothing to the common law duty of fairness, and that if fairness requires reasons, then the Panel would have to give reasons. Ms Sackman disputes the submission that there is a civil right in this case, and that it is not a matter that requires determination by the court.[62]The Supreme Court judgement in Tomlinson and others (FC) v Birmingham City Council [2010] UKSC 8 was published on 17th February 2010, and was available on the second day of this hearing. This case deals with whether a decision of a local authority under s 193(5) of the Housing Act 1996 is a decision which engages Article 6. Both Counsel made submissions. Ms Sackman submitted, on the basis of that case, that it would be wrong of me to extend the law relating to what is a civil right. Mr Buttler said that Tomlinson was concerned with a benefit in kind rather than with cash payments; and that whereas Tomlinson concerned evaluative judgments, the Panel in the present case where making a decision: “How much?” in other words an economic pecuniary right.[63]I have to say that I do not agree with Mr Buttler, and indeed Lord Hope’s quotation in Tomlinson of the joint dissenting opinion in Feldbtrugge v The Netherlands (1986) 8 EHRR 425 supports the proposition that our courts do not consider the entitlement to direct payments as in this case to constitute a civil right. The opinion in Feldbrugge contains the following sentence:
“The judicialisation of dispute procedures, as guaranteed by article 6(1), is eminently appropriate in the realm of relations between individuals but not necessarily so in the administrative sphere, where organisational, social and economic considerations may legitimately warrant dispute procedures of a less judicial and formal kind.”
[64]Lord Hope states that concerns about over-judicialisation of dispute procedures in the administration of social and welfare benefits have not gone away.[65]After analysing the European and UK case law, Lord Hope said that he would be: “…prepared… to hold that cases where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder, but is dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met, do not engage article 6(1)”.[66]Lord Collins ended his judgment by saying that the “essentially public nature of the duty mean that the duty does not give rise to an individual economic right, and a dispute concerning the question whether the applicant has been properly notified of the consequences of refusal of accommodation is not within Article 6.”[67]I found considerable assistance in the judgement of Lord Kerr. He said that he had not found it easy to reach a principled basis for a distinction between social security payments and social welfare provision, for both require the expenditure of public resources; both provide a valuable resource to the recipient; and both are activated by a need on the part of the beneficiary. In his view, it was the lack of similarity to a private insurance scheme; and the dependence on discretionary judgments not only to establish entitlement but also to discharge the state’s obligation and the way in which this obligation can be met that make the case before the Supreme Court in Tomlinson, a different type of case from Salesi v Italy (1993) 26 EHRR 187 and Mennitto v Italy (2000) 34 EHRR 1122.[68]I have arrived at a similar conclusion in this case. The creation of a personal budget and the manner in which a personal budget is utilised are matters that fall squarely within social welfare provision. Applying the judicial reservations advanced by Lord Hoffman in Runa Begum v Tower Hamlets LBC [2003] UKHL 5 and by Lord Hope in Tomlinson, it is my view that this is not an area of law which engages Article 6.

Remedy

[69]It follows from my decision that the declarations that I grant are as follows:(i) the Panel is under a duty to provide reasons for its decision dated 21st December 2009, which are adequate to show that it is satisfied, reasonably, that the allocated budget is sufficient to meet the individual’s assessed needs;(ii) as no reasons are given, there be an order quashing the Panel’s decision of 21st December 2009;(iii) there be an order that the Panel reconsider the Claimant’s personal budget, and provide reasons for its decision.[70]A declaration that the RAS is an unsound basis for determining personal budgets is not granted.

Cited in 4 later judgments