R (Savva) v Royal Borough of Kensington & Chelsea
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Longmore,Lord Justice Patten |
| Judgment Date | 28 October 2010 |
| Neutral Citation | [2010] EWCA Civ 1209 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 October 2010 |
| Docket Number | Case No: C1/2010/0788 |
[2010] EWCA Civ 1209
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
(His Honour Judge Pearl, Sitting as a Deputy Judge)
Before: Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Longmore
and
Lord Justice Patten
Case No: C1/2010/0788
REF NO:CO5342010
Mr Philip Coppel QC and Christopher Buttler (instructed by) for the Appellant
Ms Nathalie Lieven QC and Tom Cross (instructed by) for the Respondent Written submissions on behalf of Secretary of State for Health
Hearing date : 14 September 2010
Lord Justice Maurice Kay :
1. By section 2 of the Chronically Sick and Disabled Persons Act 1970:
“Where a local authority … are satisfied in the case of any [disabled] person … that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters [a list of services is set out] … then … it shall be the duty of the authority to make those arrangements.”
2. Initially, local authorities carried out the duty by providing or procuring the provision of the relevant services. The disabled person was simply the recipient of the services. However, in recent years central government, through the Department of Health, has encouraged local authorities to discharge the duty by providing a disabled person with money in the form of a personal budget, thereby enabling the person to purchase the services required to meet his or her eligible needs. This is thought to enhance personal autonomy.
3. Mrs Rafaela Savva is a disabled person with a number of serious health problems. She lives alone in a basement flat in Earls Court. She is unable to go out without assistance and is virtually housebound. The Royal Borough of Kensington and Chelsea (the Council) is the local social services authority. It has assessed Mrs Savva's eligible needs from time to time. On 21 December 2009 it decided to meet those needs by providing her with a personal budget of £170.45 per week. She applied for a judicial review of that decision. The grounds of challenge included (1) a challenge to the lawfulness of the Council's method of calculating personal budgets and (2) a complaint that the Council had not provided adequate reasons for its calculation of her personal budget.
4. In a judgment handed down on 11 March 2010, His Honour Judge David Pearl, sitting as a Deputy High Court Judge, quashed the decision of 21 December 2009 on the basis of a failure to provide adequate reasons. However, he rejected the ground of challenge which asserted that the method of calculation was unlawful. His judgment bears the neutral citation number [2010] EWHC 414 (Admin). The case now comes before this Court as an appeal by Mrs Savva on the unlawfulness issue and a cross-appeal by the Council on the reasons issue. I should add that, at first instance, there was a further ground of challenge asserting that the particular calculation was irrational but the judge rejected it and Mrs Savva does not seek to appeal by reference to that.
Statutory provision and guidance
5. Section 57 of the Health and Social Care Act 2001 provides for regulations to be made authorising local authorities to make direct payments to persons who are owed a duty under section 2 of the Chronically Sick and Disabled Persons Act 1970. This led to the Community Care, Services for Carers and Children's Services (Direct Payment) (England) Regulations 2009. By regulation 14, the duty owed under section 2 of the 1970 Act is discharged by the making of a monetary payment “as long as [the local authority] are satisfied that the need which calls for the provision of the service will be secured by … the payee's own arrangements”.
6. The statutory provisions have been followed by guidance issued by the Department of Health, building on documents produced by the Association of Directors of Social Services. It is not necessary to set out extensive extracts from these sources. I simply refer to two recurrent features. First, there is an emphasis on “transparency” in the decision-making process – “clear, upfront allocation of funding”, providing recipients with clarity on how decisions are made. Secondly, there is encouragement of the use of resource allocation systems (RASs). No single RAS is prescribed. Several are described. It is clear that they are not seen as being in themselves precise methods of producing a definitive personal budget in an individual case. They produce a provisional or indicative figure. Thus, the Department of Health's Guidance on Direct Payments – For Community Care, Services for Carers and Children's Services (September 2009) states that a RAS
“should be applied as a means of giving an approximate indication of what it may reasonably cost to meet a person's particular needs according to their individual circumstances. It is important for councils to ensure that their resource allocation process is sufficiently flexible to allow for someone's individual circumstances to be taken into account when determining the amount of resources he or she is allocated in a personal budget.”
7. It is axiomatic that local authorities do not have a bottomless pit of funds at their disposal. It is permissible for them to take account of the relative severity of individuals' needs and the availability of resources when determining whether it is necessary to make arrangements to meet an individual's needs. However, once a local authority has decided that it is necessary to make such arrangements, it has an absolute duty to provide the individual with the services or the personal budget with which to meet the assessed needs: see R v Gloucestershire County Council, ex parte Barry [1997] AC 584.
The facts
8. Mrs Savva has been in receipt of care services from the Council for about ten years. In the course of 2009, the Council carried out a review of her care plan on 25 February. On 20 July, with the assistance of her social worker she completed a self-assessment questionnaire (SAQ). This gave rise to a score of 16 points in accordance with the Council's system. The point score was then fed into the RAS which converted it into an indicative personal budget of £82.91 per week. On 29 July, the social worker completed a functional assessment of care environment (FACE) which recorded a number of moderate and substantial needs. The SAQ, the RAS indicative budget and the FACE assessment were then considered by the Resource Allocation Panel (the Panel) which, having considered the totality of the material, decided upon a personal budget of £170.45 per week.
9. There was some deterioration in Mrs Savva's health between July and November. On 19 November, again with the assistance of her social worker, she completed a fresh SAQ which generated a points score of 22. When this was fed into the RAS it produced an indicative budget of £112.21 per week. The social worker then completed another FACE assessment, recording a number of eligible needs. The assessment indicated an increase in the needs since July. On 21 December the Panel, having considered the FAQ, the RAS indicative budget and the FACE assessment, again decided upon a personal budget of £170.45 per week. The Council later explained (and the judge accepted) that the fact that the personal budget remained the same in the July and December allocations, notwithstanding increased needs, was because the July figure had been overgenerous.
10. On 22 December, the Council wrote to Mrs Savva notifying her of the decision. The letter was in the following terms:
“I write further to the recent reassessment to advise you that your allocated budget for the purchase of support to maintain your independence and wellbeing is £170.45 per week.
This budget is the amount of money you, together with your social worker or support broker, are able to spend each week when planning and purchasing support. You may be required to contribute to the cost of your care, you will be given more information on how much this will be when the amount has been confirmed with the Financial Assessment Team.
The details of your support plan need to be agreed by the manager of the social work team that undertook your recent reassessment.
This allocation is subject to review at least annually or at any time that it is felt that your needs have changed. Please let us know if your needs change in order that we can ensure that you can receive the...
To continue reading
Request your trial
-
Y.Y. v The Minister for Justice and Equality No.7
...Review (6th Ed.) p. 669 and case law referred to therein: see R. (Savva) v. Kensington and Chelsea Royal London Borough Council [2010] EWCA Civ 1209 [2011] PTSR 761 at para. 21, Stefan v. General Medical Council [1999] 1 WLR 1293, R. (Alconbury Developments Ltd.) v. Secretary of State for......
-
The Secretary of State for Communities and Local Government v Sarah Louise Venn
...enforceable EU environmental Directives, which were not in issue in the present case: see R (Garner) v Elmbridge Borough Council [2010] EWCA Civ 1209; [2011] Env. LR 10 (" Garner"). 6 The Judge concluded that: (1) the Claimant's section 288 application was an environmental challenge falling......
-
R (KM) v Cambridgeshire CC
...constitution of that court, reached several months earlier, in R (Savva) v Kensington and Chelsea Royal London Borough Council [2010] EWCA Civ 1209, [2011] PTSR 761, which, like the present, required review of an authority's determinations at the third and fourth stages of its inquiry into......
-
R D v Worcestershire County Council
...County Council ex parte Mahfood (1997) 1 CCLR 7, R v Gloucestershire County Council ex parte Barry [1997] AC 584, Savva v Royal London Borough of Kensington and Chelsea [2010] EWCA Civ 1209, R (JG and MB) v Lancashire County Council [2011] EWHC 2295 (Admin); [2012] 15 CCLR 167 and R (KM) v ......