Tim Baldwin summarises an important Supreme Court decision on the duties of local authorities when providing services to disabled persons
In R (on the application of KM (by his mother & litigation friend JM)) v Cambridgeshire County Council the Supreme Court set out the approach for local authorities when making arrangements for the provision of services specified in s 2(1) of the Chronically Sick and Disabled Persons Act 1970 and the reasonable cost of providing those services.
The claimant, KM. was a profoundly disabled 26 year old man who lived with his mother, brother and sister. He had been born without eyes, and suffered from other physical and mental difficulties. He required help in feeding and caring for himself.
Section 2(1) of the 1970 Act imposed a duty upon the Council to make arrangements for KM’s care, including the provision of specified services. The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009 permitted the Council to discharge their obligations by making a direct payment to the service-user so that they could themselves decide how to spend it. An independent social worker assessed KM’s needs in the sum of £157,000. The Council made a final offer of approximately £85,000, but failed to explain how this had been calculated. KM challenged this offer and claimed he should have been paid £120,000.
The Supreme Court, in dismissing KM’s appeal, held that when a local authority was required to make arrangements for the provision of any of the matters specified in s.2(1) of the 1970 Act , it should do so in three separate stages.
1. It should consider what were the needs of the disabled person.
2. In order to meet those identified needs, it should consider whether it was necessary to make arrangements for the provision of any of the specified services.
3. If the answer to the second stage was yes, it should consider the nature and extent of those services.
The Court considered there was also a fourth potential stage of inquiry. In those cases where the disabled person qualified for a direct payment the local authority was required to consider the reasonable cost of securing provision of the services identified at stage 3.
An important aspect of the second question involved considering whether the needs of the disabled person could reasonably be met by family or friends, other organs of the state or out of the person’s own resources. This required an analysis of the relationship between the scale of the local authority’s resources and the weight of other demands upon it namely, the availability of its resources (R. v Gloucestershire CC Ex p. Barry). In the instant case, the Council had not relied upon resource constraints when reaching its decision.
The Court explained that costing each of the requisite services would be unacceptably laborious and expensive if done without any guidance. Local authorities have for some time used a mechanism known as a “resource allocation system” (RAS) which ascribes points to each eligible need. Cambridgeshire County Council had further used a second indicative tool, called an “upper banding calculator” (UBC), which reflected factors elevating the requisite level of services and allowing an additional sum to be ascribed. The Court said that, once the indicative sum had been identified, the requisite services should be costed in a reasonable degree of detail so that a judgment could be made as to whether the indicative sum was too high, too low or about right. Accordingly, the Court held that it had been rational for Cambridgeshire County Council to use the RAS and UBC provided that the result was cross-checked.
There were, according to the Court, some problems with the approach that had been taken by the Council. It should have made a more detailed presentation to KM of how he might reasonably choose to deploy the offered sum, and of its own assessment of the reasonable cost of carers. In addition, the Council had failed to provide a timely explanation of its reasoning. Nevertheless, there was no utility in quashing the Council’s decision. Its calculations had proceeded on the incorrect premise that KM would receive no support from his family and any flaw in the computation was therefore likely to have been in his favour. Moreover, the independent social worker had uncritically endorsed the wishes of KM in his report, which led to a belief in a higher entitlement.