CHAPTER 9
Service provision decisions
9.1Introduction and principles 9.13Power in relation to adults 9.16Power in relation to carers 9.17Needs that local authorities may not meet 9.18Plans and adverse decisions 9.29Relevance of carers to assessments of adults 9.31Involvement/advocacy/Mental Capacity Act 2005 9.32Combined and joint assessments and plans 9.45Preferred accommodation What services direct payments may cover Who may receive direct payments Review and termination Portability
Cases
9.75R v Gloucestershire CC ex p Barry (1997–8) 1 CCLR 40, HL Resources were relevant to decisions whether to meet needs under section 2 of the Chronically Sick and Disabled Persons Act 1970
9.76R v Islington LBC ex p Rixon (1997–8) 1 CCLR 119, QBD Assessment and care planning must not deviate substantially from statutory guidance and must demonstrably have regard to departmental guidance. Where physical resources are unavailable to meet needs, local authorities must seek to secure the physical resources to do so
9.77R v Sutton LBC ex p Tucker (1997–8) 1 CCLR 251, QBD Assessment and care planning must comply in substance with the statutory guidance and include effective long-term planning
9.78R v Lambeth LBC ex p A1 and A2 (1997–8) 1 CCLR 336, CA Where physical resources are not available to discharge a duty to meet needs, the local authorities may have to make a sincere and determined effort to secure them
9.79R v Kirklees MBC ex p Daykin (1997–8) 1 CCLR 512, QBD Local authorities are entitled to meet needs in the most cost-effective manner
9.80R v Wigan MBC ex p Tammadge (1997–8) 1 CCLR 581, QBD Local authorities are required to meet needs that they have accepted as being eligible
9.81R v Kensington and Chelsea RLBC ex p Kujtim (1999) 2 CCLR 340, CA A local authority remains under a duty to meet eligible needs unless the applicant has manifested a persistent and unequivocal refusal to observe reasonable conditions and must be ready to re-assess where it appears that the applicant will not persist
9.82R v Calderdale MBC ex p Houghton (2000) 3 CCLR 228, QBD A care plan must be a rational response to the assessment of needs
9.83R v South Lanarkshire Council ex p MacGregor (2000) 4 CCLR 188, CSOH Some waiting lists might be lawful but this waiting list was not as it did not prioritise applicants according to their needs and was a plain attempt to avoid meeting statutory duties
9.84R (Khana) v Southwark LBC [2001] EWCA Civ 999, (2001) 4 CCLR 267 Local authorities are required to meet needs under section 21 of the National Assistance Act 1948, not preferences; an offer of accommodation that meets needs discharges the duty
9.85R v Newham LBC ex p Patrick (2001) 4 CCLR 48, QBD Referring a homeless woman with care needs to a housing charity did not amount to a discharge of the duty to assess or meet her needs
9.86R v Islington LBC ex p Batantu (2001) 4 CCLR 445, QBD A local authority remained under a duty to meet assessed needs despite the service user’s refusal of offered services
9.87R (Wahid) v Tower Hamlets LBC [2002] EWCA Civ 287, (2002) 5 CCLR 239 Local authorities are only required to provide accommodation under social care legislation when the qualifying criteria under such legislation are met
9.88R (A and B) v East Sussex CC [2002] EWHC 2771 (Admin), (2003) 6 CCLR 177 A balance was to be struck between the ECHR rights of paid carers and service users. Local authorities may make payments to user independent trusts for the provision of care services
9.89R (Rodriquez-Bannister) v Somerset Partnership NHS and Social Care Trust [2003] EWHC 2184 (Admin), (2004) 7 CCLR 385 A local authority may rationally prefer the views of its own expert as to what services to provide
9.90R (Alloway) v Bromley LBC [2004] EWHC 2108 (Admin), (2005) 8 CCLR 61 A local authority fetters its discretion if it rules out one service from the start on costs grounds and does not fairly compare the rival options
9.91R (Hughes) v Liverpool CC [2005] EWHC 428 (Admin), (2005) 8 CCLR 243 It was unlawful to fail to meet a statutory need for residential accommodation but that did not necessarily result in a breach of ECHR rights
9.92Casewell v Secretary of State for Work and Pensions [2008] EWCA Civ 524, (2008) 11 CCLR 624 Direct payments used to pay a relative to provide home care were ‘earnings’ in her hands, for social security purposes
9.93Re an application by LW (acting by her mother JB) for judicial review [2010] NIQB 62, (2011) 14 CCLR 7 There was a duty to meet assessed needs under the Northern Ireland legislation
9.94R (Savva) v Kensington & Chelsea RLBC [2010] EWCA Civ 1209, (2011) 14 CCLR 75 It is lawful to use a resource allocation scheme to provide an indicative budget provided the local authority fine-tuned that budget to ensure that it met needs and provided adequate reasons that justified its ultimate budget
9.95R (McDonald) v Kensington & Chelsea RLBC [2011] UKSC 33, (2011) 14 CCLR 341 The local authority was entitled to withdraw the provision of an overnight carer who helped the appellant access the commode at night, when it assessed that the appellant’s needs could be equally met by the provision of incontinence pads and absorbent sheets
9.96R (G) v North Somerset Council [2011] EWHC 2232 (Admin) North Somerset had not acted unlawfully in deciding to cut the amount of direct payments and replacing direct payments with a managed care service
9.97R (KM) v Cambridgeshire CC [2012] UKSC 23, (2012) 15 CCLR 374 It is lawful to use a resource allocation system to guide assessment as to what level of personal budget to provide
9.98R (AJ) v Calderdale BC [2012] EWHC 3552 (Admin), (2013) 16 CCLR 50 There is no reason in principle why service and family members could not participate in evaluation panels to select service providers
9.99In the matter of DM (a person under disability) acting by his next friend Kathleen McCollym, for judicial review [2012] NIQB 98, (2013) 16 CCLR 39 It was unlawful to treat the budgetary indication provided by a resource allocation scheme as final
9.100In the matter of an application for judicial review by JR 47 [2013] NIQB 7, (2013) 16 CCLR 179 The relevant authorities were under a duty to assess and meet community care needs, in general, in accordance with the relevant guidance
9.101McDonald v United Kingdom (2014) 17 CCLR 187, ECtHR It was not a breach of the ECHR for the local authority to re-assess a person’s needs and provide them with considerably less than previously, in this case, by providing incontinence pads and absorbent sheets in place of a night-time carer and commode
9.102Re MN (An Adult) [2015] EWCA Civ 411, (2015) 18 CCLR 521 The Court of Protection has no power to require a public authority to provide different services, only to consider whether services on offer are in P’s best interests, so any legal challenge to the sufficiency of services offered must be brought by way of judicial review
9.103R (SG) v Haringey LBC [2015] EWHC 2579 (Admin), (2015) 18 CCLR 444 A failure to provide an independent advocate under section 67(2) of the Care Act 2014 rendered the assessment unlawful. A duty only arose to provide accommodation when the need was ‘accommodation-related’
9.104R (Collins) v Nottinghamshire CC [2016] EWHC 996 (Admin), (2016) 19 CCLR 494 It had been rational for Nottinghamshire to suspend an organisation from its list of accredited providers of direct payment support services