R (Broster) and Others v Wirral Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LANGSTAFF |
| Judgment Date | 11 October 2010 |
| Neutral Citation | [2010] EWHC 3086 (Admin) |
| Date | 11 October 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/10337/2010 |
[2010] EWHC 3086 (Admin)
IN THE HIGH COURT OF JUSTICE
Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
Greater Manchester M60 9DJ
Before: Mr Justice Langstaff
Case No: CO/10337/2010
Mr McKendrick (instructed by Messrs Beech Jones de Lloyd) appeared on behalf of the Claimants
Miss Richards and Mr Hill (instructed by Messrs Weightmans) appeared on behalf of the Defendant
The Interested Party did not appear and was not represented
At the heart of this case is the question in what circumstances a local authority may not be justified in exercising an admitted discretion as to the method by which it provides financially for community care support.
An application for judicial review made on behalf of 17 claimants against the defendant council, whom I shall call Wirral, with Salisbury Independent Living as an interested party, was issued on 30 September. It came with an application for interim relief. It sought the continuation of arrangements that had previously been entered into between Wirral and the claimants as to support for their community care.
Since it appeared to me likely to be determinative of this application if I should refuse permission for the judicial review, and since there were before me some 22 ring file binders together with substantial material from the defendant, albeit argumentative, who had anticipated and sought to resist the challenge, I adjourned the application for interim relief into court and directed that at the same time I would hear the application for permission. I did so last Tuesday. The application came before me yesterday, 11 October. This is the judgment on the application for permission and relief.
The decision under challenge was one made on 10 August 2010 and is said in the originating application to be “the decision made by [Wirral] to refuse each of the claimants other than the claimant Simon Smith a personal budget”. Since there was no decision not to pay him a personal budget, Simon Smith therefore appeared to seek no particular relief in respect of the substance of the decision. It was unclear from the way in which the papers were drafted whether he claimed any other relief and accordingly at the outset of this hearing it was agreed by Mr McKendrick, who appears for the claimants, that the claim would proceed as brought by the other 16 claimants.
All the 16 are vulnerable adults. Some have substantial, a few have minor, learning disabilities together with other mental health and in some cases behavioural problems. They all live in accommodation in respect of which the landlord is Salisbury Independent Living. SIL (for such I shall call them) also are the care providers under the arrangements which I shall describe.
The legal background is not a matter of dispute and I shall take it fairly swiftly. There is a duty pursuant to Section 47 of the National Health Service and Community Care Act 1990 to assess persons with a view to the provision of community care services. Section 47, headed “Assessment of Needs for Community Care Services”, provides:
“(1) Subject to subsections (5) and (6) below, 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.
(2) If at any time during the assessment of the needs of any person under subsection (1)(a) above it appears to a local authority that he is a disabled person, the authority:—
(a) shall proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section …”
It is common ground that if as a result of the assessment carried out under section 47 there is the need displayed by the subject of the assessment for the services to which reference is made, there is a duty resting upon the local authority concerned to give effect to that need and, under one piece of legislation or another which it is unnecessary for the purposes of this judgment to recite in full, have a duty to give effect to the assessment.
In practical terms the duty to do so may be discharged by commissioning services from a provider. (Historically that is what has happened in respect of each of the 16 claimants for whom Wirral has secured community care support: Wirral commissioned services in their cases from SIL). It can alternatively be arranged by providing personal budgets.
In February 2010 the Department of Health published guidance called “Prioritising need in the context of Putting People First: a whole system approach to eligibility for social care”. In a section of the guidance headed “Personalisation and support planning” with a sub-heading “Person-centred planning for care and support”, the following is said:
“119. If an individual is eligible for help then the council should work with that individual to develop a plan for their care and support. Putting People First sets out a vision where all people in receipt of social care support and their carers should be in control of their own lives, using personal budgets to direct the funding available to them to meet their needs in the way that suits them best. The Care and Support Green Paper confirmed this direction of travel.
120. The success of self-directed support initiatives will therefore depend upon effective support planning. This should be person-centred, exploring what is important to the individual concerned and how they can spend their personal budget to organise and create support in order to achieve their aims. In local authorities where personal budgets have not yet been implemented, choice and control should also be available to people receiving directly managed services to help identify personalised solutions to meet their outcomes. In this way, a support plan will reflect the decisions made by the individual, supported by anyone they have chosen to assist them in this planning.”
Section 7 of the Local Authority Social Services Act 1970 provides:
“(l) Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.”
It is common ground between the parties before me that this requires a local authority to do more than simply pay regard to guidance; it is to act under it. That means that it should follow the guidance unless there is a good and sufficient reason in the particular circumstances of the case not to do so. There is copious authority for this, to some of which I have been referred, which it is unnecessary to recite since the principle is agreed..
It is worth noting that the guidance which I have set out at paragraphs 119 and 120 falls short of requiring a local authority to provide a personal budget unless there are good reasons not to. This emerges from the closing sentence of section 119 which describes the move from commissioned services to personal budgets as a “direction of travel”. This indicates a policy emphasis on ensuring that an individual has greater control over decisions made in respect of his or her life, including decisions which involve finance, and it is easy to see that possession of control over finance allows an individual potentially to have greater control over that which is provided for his or her benefit.
Secondly, in paragraph 120 the guidance explicitly recognises that many local authorities have not yet implemented personal budgets and there is no sense of criticism of those authorities for this. In part of the papers before me there is a reference, albeit that the date to which this relates is unclear, that perhaps 30 per cent of local authorities provide personal budgets at present. That means 70 per cent do not. What is described is, if a trend at all, plainly a trend which is far from complete as yet.
The balance of the chapter in the guidance beyond paragraph 120 is concerned with urging local authorities to offer a greater degree of personal choice, whether in respect of a commissioned service or one provided through a personal budget, even where it involves some risk. The guidance is also general to all recipients of support. It does not focus specifically upon those whose vulnerability arises through learning difficulties, mental disabilities and behavioural problems but plainly covers them amongst those other classes who require social support.
The emphasis is, however, clear (see paragraph 127 in which it is noted that Putting People First envisages the availability of personal budgets for everyone eligible for publicly-funded social care support and adds that councils should therefore support all individuals with eligible needs to draw on the benefits of self directed support).
It must be obvious that providing a greater degree of control to a vulnerable individual over his or her own life necessarily exposes that individual to greater risks. Such a person may make a bad choice. Paragraphs 133 and 134 of the guidance deal to some extent with managing those risks. Paragraph 133 says:
“Giving people more choice and control inevitably raises questions about risk, both for individuals...
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