KM v Cambridgeshire County Councilin the Supreme Court
BelindaSchwehrCare and Health Law01252 725890 / 07974 399361
The Council has survived scrutiny as to its RAS based reasoning for its offer of a direct payment
… gaining the unanimous support of a seven judge Supreme Court.Gloucestershireis still good law –iecouncils can use resources difficulties to justify setting a threshold below which it will not be necessary to meet need by way of care plan arrangements -But once an individual’s needs have been identified above the threshold, the only relevance of resources is as to themanner and settingof and for meeting these needs, not the issue ofwhetherthe need should be met….TheSavvacase, on the need to give coherent reasons for the amount of service thought appropriate, or for the funding in the budget, is still good law, too.Support plans for personal budgets should generally contain at least the following: the required services and assumed timings... together with the assumed hourly cost.In disputed cases,In a direct payment case, where there is a dispute,more detailed presentation ofhow in a council’s opinion a person might reasonably choose to deploy the offered sum should be offered.A council should explain its own assessment of the reasonable cost of the services necessitated by the eligible needs – in this case, of the principal item of the appellant’s future expenditure, namely the cost of paying for carers for him.Councils have therefore been warned: don’t ignore your duty of transparency andreasoning! If you do, the Courts are there for service users through which toenforce accountability.
Thesubstantivesocial care duty,re-stated once again, by the courts
15. When a local authority is required to consider whether it is “necessaryin orderto meet the needs of that person for that authority to make arrangements for” theprovision of any of the matters on the service list, it is required to askitself threequestions and should do so in three separate stages:(i) Whatarethe needs of the disabled person?(ii) In order to meet the needs identified at (i), isit necessaryfor the authority to makearrangementsforthe provision of any of the listed services?(iii) If the answer to question (ii) is affirmative,what arethe nature and extent of the listed servicesfor theprovision of which it is necessary forthe authorityto make arrangements?Thereis afourth potential stage of the inquirywherea direct paymentis sought by the service user….
The role of FACS and the guidance
16. Section 2 of the 1970 Act provides that the duty imposed by it is subjectto thegeneral guidance of the Secretary of State given pursuant to section 7(1) ofthe LocalAuthority Social Services Act 1970, being guidance under which, inthe wordsof that subsection, a local authority “shall... act”.Thecurrent guidanceis entitled“Prioritising need in the context ofPutting People First: A wholesystem approachto eligibility for social care”, published in February 2010.TheGuidance, … extendsbeyond the discharge of an authority’s duty to adisabled personunder section 2 of the 1970 Act to its various other statutoryresponsibilities foradult social care.But, although the language of the Guidance is not bespoketo section2, it fits perfectly with the three stages…identified.
The fourth stage in cases of direct payments
22. …Onceit is satisfied that the person’s need for the relevant service canbe metby securing the provision of it by means of a direct payment, the authorityis inmany cases under a duty, with that person’s consent, to make such a payment,the amount ofwhich must equate to the reasonable cost of securing the provision: seeregulations 7(1)(c) and (2) and 9(1), together with section 57(4)(a) of the2001 Act. The admirable idea is to empower him with control over his own budget.23. So, in cases like the present in which a disabled person qualifies for adirect paymentin lieu of its own provision of services to him, the local authorityis requiredto proceed to the fourth stage as follows:(iv) What is the reasonable cost of securing provision of theservices whichhave been identified at (iii) as being those for the provisionof whichit is necessary for the authority to make arrangements?
The relevance of the RAS
24.…amechanism has been devised inorder togive the exercise a kick-start. It is called a Resource Allocation System (a “RAS”); and many authorities, including Cambridgeshire, have developed onefor theirown use.25. Under a RAS the local authority ascribes a number of points, withina prescribedband, to each of the eligible needs in the particular case. Itthen calculatesthe total points and consults a table within the RAS which ascribesan annualsum to the total points. For example, under the model adoptedby Cambridgeshire, one point equates to £455 and 55 points (being themaximum underits model) equates to £61k.Crucialto a RAS is a realistic nexusboth betweenneeds and points and between points and costs.Cambridgeshire developedits nexus by taking a group of 260 of its service-users who werein receiptof a direct payment, by analysing each of the eligible needs for whichthe paymentwas made and by seeking to make arealistic attributionof part ofthe paymentto each need. It conducted various counter-checks in order to testthe robustness of the model.
The higher points RAS for high cost cases
27. Some service-users have eligible needs which require so high a levelof servicesthat under Cambridgeshire’s RAS they score total points beyondits maximumof 55. The appellant is a case in point: he scored 62. In order to caterfor suchcasesCambridgeshirehas developed a second indicative tool. It is calledan UpperBanding Calculator (a “UBC”). It reflects in effect three factors which,in Cambridgeshire’sexperience, often greatly elevate the requisite level of services, namelya requirement for a carer to remain awakeat night, fortwocarerstooperatesimultaneouslyand for a carer to havespecialist expertise.Ina casein whichits RAS has identified a figure above the maximum, Cambridgeshireasks whetherany of these three factors is present and, if so, it calculates, by referenceto them, an appropriate annual sum for addition to the principal sum of £61k identifiedby the RAS.Whatis crucial is that, once the starting-point (or indicative sum) hasfinally beenidentified, the requisite services in the particular case should becostedina reasonabledegree of detail so that a judgement can be made whether theindicative sumis too high, too low or about right. Such is an exercise which, inaccordance withthe Guidance atpara121, Cambridgeshire carries out, usually andpreferably inconjunction with the service-user himself, and it is called the making ofa “support plan”.
The absolute need to get the carer’s position straight at the outset
In the completion ofthe questionnairethe mother did co-operate. But her co-operation had anegative feature.Thisrelated to her own contribution to the appellant’s care, which shewas thenproviding at a very substantial level and for which she was in receipt ofan annualcarer’s allowance of £5k designed to enable her to purchase limitedrespite fromcaring for him.Nodoubt she reasonably considered that the level of hercare ofthe appellant should be reduced: she claimed in answer to the questionnairethat itwas having a critical impact on her lifestyle and could not continue.Yetitseems extraordinarythat she should have caused the officer to record, in relation to allof theseven areas of need identified in the questionnaire, that the “unpaid support... offeredby families” was “none”.Noother evidence in the proceedingssuggests thatthe mother has refused to continue to play any role in the care of theappellant –living, as he does, within her home; on the contrary, seepara32 below. It ishard toavoid concern about the motives of the mother in having madesuch representations.
Cambridgeshire’s [typical] mistakes:
30.…Cambridgeshire madethree significant mistakes in its analysis, and presentation to the appellant,of theextent of its duty to him under section 2 of the 1970 Act.Thefirst was inits treatmentof the mother’s representations, through the answers tothe questionnaire, that in the future he would receive no natural support. Inevitablyit didnot accept the representations; but it never stated, whether in writing tothe motheror orally to the appellant or otherwise, that it did not accept them. Itlulled theappellant and the mother into thinking that, for some extraordinary reason,it didaccept them. Even if, in the interests of co-operation, Cambridgeshirewas preparedto proceed on that basis, it should have put down a marker that it didnot acceptthem.When, in May 2009, by reference to the questionnaire, itperformed itsRAS and UBC calculations, it made no allowance for natural support. TheRAS figurewas £61k and the UBC addition was £6k: the total was thus £67k.Had allowancebeen made for a reasonable level of future support by the mother,the RASfigure would have been about £46k and so there would have been noUBC additionat all.
The independent social worker’s ‘contribution’ – take note, anyone thinking that ‘independence’ for a contracted social worker means you can just report back what is wanted!
Mr C’s addendum report, dated 10 December 2009, was a mostunhelpful document. It was not an expert’s report: it was a presentation of what theappellant andhis motherwanted. Mr C’scostingstotalled £157k. Into his figures hebrought forwardthe suggestion that paid care for the appellant was required tobe purchasedfor14 hours(thus, for example, from 8:00 am to 10:00 pm) on eachday ofthe year, at (so Mr C wrote) £18 per hour, i.e. £92k. Mr C did not suggest that, inhis expert view, paid care of that magnitude wasnecessary, still less didhe explainwhy such should be. He said only that it was “reported” that itwas necessary: the “report”, of course, had come from the family and no doubtin particularfrom the mother. Mr C also identified 13 different educational, therapeuticand leisure activities in which the appellant might engage for a totalof 32hours each week (while the paid carer was presumably expected to sit and wait, asalso during the substantial periods to be spent by the appellant in hismusic room) at a cost of £40k; and, among his remaining provisions, Mr C includedtwo two-weekholidays each year for the appellant, his mother and a paid carer, ata costof £19k.34. Unfortunately the uncritical endorsement of the wishes of the appellantand ofthe mother by Mr C in his addendum report led them to believe that hehad becomeentitled to provision of such magnitude.Evenmoreunfortunately Cambridgeshire’sresponse to the report fortified their belief. Theauthority consideredthat, in relation in particular to the level of paid care but also tothe suggestedactivities and holidays, Mr C’s presentation of the requisite servicesand theircost was manifestly excessive.But it did not say so; and such was itssecond significantmistake.
Why this was disastrous:
No doubt allowance falls to be made for the need foran authorityto try to co-operate harmoniously with the service-user in the futureand thusfor it to avoid any unnecessary injection of conflict. But to theappellantCambridgeshiregave the impression, in particular, that it was puttingforward calculationson the basis of arequirementfor 14 hours of paid care on each dayof theyear not just for the sake of argument but because it considered sucha requirementto be reasonable. Thus, again on the curious footing that nonatural supportwould be available to the appellant, it re-conducted its RAS calculation, whichagain, of course, produced the maximum of £61k. Then it re-conductedits UBCcalculation but, on this occasion, it did so on the premise that there shouldbe anuplift referable to the cost of specialist, paid care for the appellant for14hours oneach day of the year: the calculation produced an extra £24k.Thus it was that, byletter to the appellant’s solicitors dated 5 January 2010, Cambridgeshire,by thenacting through its legal department, made the offer of £85k which becamethe subjectof challenge in the proceedings. It pointed out that specialist paid carefor 14hours on each day of the year, at (so it suggested) just under £15 per hour,wouldcost £75k and that on that basis £10k would remain for educational, therapeuticand leisure activities.Suchmay thereforejust aboutbe characterisedas asupport plan, albeit of an extremely generalcharacter.
What happened next?
35. By its letter dated 5 January 2010, Cambridgeshire had thus explainedhow theoffered £85k might be deployed; but it had not explainedhow it hadbeen computed.Contrary,… toappearances, the offered figure, beingthe product of the RAS and the UBC, was not, of course, the result ofany detailedcosting of the services which Cambridgeshire regarded as requisite forthe meetingof the appellant’s eligible needs.But, as Cambridgeshire accepts,the differentbasis of the two elements of the computation should, in broad terms,have beenexplained; andsuch was its third significant mistake.Evena sessionof mediationwhich took place in May 2010 proved abortive for want ofthe explanation; but at least the mediator facilitated the extractionfrom Cambridgeshireof a commitment to provide it within 14 days.Intheevent Cambridgeshirefinally provided a full explanation under cover of a letter dated3 June2010; andit described the offer of £85k as an “envelope” within whichany reasonablesupport plan might be accommodated.Butthe process of its arrivalat anintelligible explanation of the offer had been, as the Court of Appeal observed,tortuous.Meanwhile, in April 2010, it had provided another, rather more detailed, supportplan in order to reflect the fact that, by then (albeit, as it was to transpire, notfor long), the appellant was attending the college so needed less paid care.On thatbasis, as the plan indicated, a very substantial sum namely £28k, wouldremain availableto the appellant for application to other outside activities.
How much reasoning is required?
37. In theSavvacase, cited above, Maurice Kay LJ gave helpful guidance asto theproper approach to the provision of reasons in this class of case as follows:“21. In many cases, the provision of adequate reasons couldbe achievedwith reasonable brevity. In the present case, Iwould considerit adequate to list the required services andassumed timings... together with the assumed hourly cost. That would notbe undulyonerous. I appreciate that some recipients requiremore complicatedarrangements which would call for moreexpansive reasoningbut if that is what fairness requires, it must be done.”Theappellant does indeed require more complicated arrangements than didMrsSavva.Evenin a more complicated case, however, itmaybe enough forthe authority, as here, to attributea compendious cost to a group of requisiteservices ofsimilar character, particularly if there are reasons for concluding thatgeneral assumptionshave been made which, if reflective of error,would reflect error inthe service-user’sfavour.
Why was the decision rational overall?
Itwas rationalfor Cambridgeshire to use the RAS and theUBC,provided that theresult wascross-checked in the manner to which I have referred.Indeed, apartfrom additional, more minor,features…, the falsepremise behind the RAS calculation that the appellant would not continueto receiveany natural support, taken together with the arresting premise behindthe UBCcalculation that he required no less than14hours of paid care on each dayof theyear, generates a provisional conclusion, which there is no evidenceto dislodge, thatany flaw in the computation is likely to have been in his favour.
Inthe light of the conflict as to the sufficiency of the offer,Cambridgeshirecouldnot produce a support plan reflective ofit,in conjunction with theappellant. Cambridgeshireshould have made a more detailed presentation to him ofhowin itsopinion he might reasonably choose to deploy the offered sum than in theplans putforward in January and April 2010.In particular,Cambridgeshire shouldhave madea presentation ofits own assessment of the reasonable cost of theprincipal itemof the appellant’s future expenditure, namely the cost of paying for carersfor him.Itsbelated explanation in June 2010 of the different basis of theindicative calculation,though necessary, did not repair that deficit.Nevertheless, in thelight ofthe amplification of Cambridgeshire’s reasoning in the mass of evidencefiled onits behalf in response to the application for judicial review issued in July 2010, whichhas enabled the appellant, by Mr Wise, to lead a fully informed inquiryinto itsdetermination in courts at three different levels, the result of which leavesno realdoubt about its lawfulness, it would be a pointless exercise of discretionto orderthat it should be quashed so that the appellant’s entitlement mightbe consideredagain, perhaps even to his disadvantage.Councils have therefore been warned: don’t ignore your duty of transparency and reasoning! If you do, the Courts are there for service users.