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
Facts: Cambridgeshire assessed KM as having a range of critical needs for community care services and, using a resource allocation system, and an upper banding calculator assessed his personal budget as £84,678.00. KM brought a judicial review, on the basis that this figure was too low.
Judgment: the Supreme Court (Phillips, Walker, Hale, Brown, Kerr, Dyson and Wilson JJSC) held that:
(i)when a local authority was required to decide whether it was necessary to make arrangements to meet the needs of a disabled person, for the purposes of section 2 of the Chronically Sick and Disabled Persons Act 1970 it was required to ask itself (i) what the needs of the disabled person were, (ii) whether in order to meet those needs it was necessary for the local authority to make arrangements to provide any services, and (iii) if so, what the nature and extent of those services were. At stage (ii), the local authority was required to consider whether the needs of the disabled person could reasonably be met by family, friends, other state bodies, or charities, or out of the person’s own resources. At stage (ii) the availability of resources was relevant and a local authority was entitled to have regard to the scale of its resources and the weight of other demands upon it;
(ii)where, as here, a disabled person qualified for a direct payment the local authority was required to ask a further question, (iv) what the reasonable cost was of securing provision of the services identified at stage (iii);
(iii)once stage (ii) had been passed, as in this case, the duty of the local authority to make provision for needs in accordance with stages (iii) and (iv);
(iv)it was lawful for a local authority to use a resource allocation scheme and an upper banding calculator, as Cambridgeshire had done, to ascertain a starting point or indicative figure, provided that the requisite services are then costed in reasonable detail to arrive a realistic direct payment figure;
(v)in this case, Cambridgeshire had erred in not expressly stating that it did not accept the mother’s assertion that KM would receive no family support and that it regarded the social worker’s estimate of the cost of the claimant’s needs as manifestly excessive, and it should have made a more detailed presentation to the claimant of how in its opinion he might reasonably choose to deploy the sum offered, and of its own assessment of the reasonable cost of the necessary services;
(vi)however, Cambridgeshire’s reasoning had subsequently been amplified during the course of the litigation, the result of which left no real doubt about the lawfulness of the award; and that, accordingly, it would be a pointless exercise of the court’s discretion to quash the determination so that the claimant’s entitlement could be reconsidered.
In addition, Lord Wilson made these interesting observations, on behalf of the majority:
5. It is true that constraints upon its resources are a relevant consideration during one of the stages through which a local authority must pass in computing the size of a direct payment owed under section 2 of the 1970 Act. In paras 15 and 23 below I will identify four such stages; and constraints upon an authority’s resources are undoubtedly relevant to the second stage. But the leading exposition of the law in this respect is to be found in the speeches of the majority of the appellate committee of the House of Lords in R v Gloucestershire County Council ex p Barry (1997–8) 1 CCLR 40; and, if and in so far as it was there held that constraints upon resources were also relevant to what I will describe as the first stage, there are arguable grounds for fearing that the committee fell into error: see the concerns expressed by Baroness Hale of Richmond JSC in R (McDonald) v Kensington and Chelsea Royal London Borough Council (Age UK intervening) [2011] UKSC 33, (2011) 14 CCLR 341, paras 69–73.
…
36. I agree with Langstaff J in R (L) v Leeds City Council [2010] EWHC 3324 (Admin) at [59] that in community care cases the intensity of review will depend on the profundity of the impact of the determination. By reference to that yardstick, the necessary intensity of review in a case of this sort is high. Mr Wise also validly suggests that a local authority’s failure to meet eligible needs may prove to be far less visible in circumstances in which it has provided the service-user with a global sum of money than in those in which it has provided him with services in kind. That point fortifies the need for close scrutiny of the lawfulness of a monetary offer. On the other hand respect must be afforded to the distance between the functions of the decision-maker and of the reviewing court; and some regard must be had to the court’s ignorance of the effect upon the ability of an authority to perform its other functions of any exacting demands made in relation to the manner of its presentation of its determination in a particular type of case. So the court has to strike a difficult, judicious, balance.
Comment: The Supreme Court has not formally decided the point, but seems to have made it clear that a lack of resources is irrelevant when deciding whether or not a person has a particular ‘need’.
There may be a tension, however, between this position and the Supreme Court’s position in
R (McDonald) v Kensington & Chelsea RLBC,
1[2011] UKSC 33, (2011) 14 CCLR 341 and above at para 9.95.in which the Supreme Court upheld Kensington & Chelsea’s decision to re-describe Ms McDonald’s needs in radically different terms, in order to save resources.
It may be possible to reconcile these decisions on the basis that KM means no more than that, although a local authority can re-define a need, for resources reasons, to its cheapest possible description, it cannot operate on the basis that it does not exist at all. There must however be a better solution: this does not seem satisfactory.