R (Savva) v Royal Borough of Kensington & Chelsea
| Jurisdiction | England & Wales |
| Judgment Date | 11 March 2010 |
| Neutral Citation | [2010] EWHC 414 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 March 2010 |
| Docket Number | Case No: CO/534/2010 |
[2010] EWHC 414 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: His Honour Judge David Pearl sitting as a Deputy High Court Judge
Case No: CO/534/2010
Mr Christopher Buttler (instructed by Hansen Palomares) for the Claimant
Ms Sarah Sackman (instructed by Legal Services, Royal Borough of Kensington and Chelsea) for the Defendant
Hearing dates: 17 th and 18 th February 2010
His Honour Judge David Pearl sitting as a Deputy High Court Judge:
Background
The Claimant in this judicial review application is a lady of 70 years of age who lives in the Royal Borough of Kensington and Chelsea. Her health is not good and I am told that she suffers from diabetes, heart and respiratory problems, and is arthritic with poor eyesight. She suffered a stroke some 10 years ago, and she has been in receipt of care services from the Local Authority since that time. She lives in a basement flat in the Borough. She is unable to leave the flat unassisted. Indeed I was told by her Counsel that she has only left the flat once in the past twelve months, apart from hospital appointments. She was hospitalised from 6 th– 13 th November 2009, when she was discharged back to her basement flat. She is unwell at the present time with pneumonia.
The challenge in this case relates, in general terms to the Defendant's system for the administration of community care services, whereby those who are assessed to be eligible for support to meet care needs are provided with a personal budget to be spent on meeting their needs in the way that they choose. More specifically, the challenge relates to the decision made on 21 st December 2009, and communicated on 22 nd December 2009, to provide the Claimant with a personal budget of £170.45p per week.
Sir Michael Harrison, sitting as a Judge of the High Court, made an Order on 19 th January 2010 that the claim shall be determined at a “rolled up” hearing.
The first matter that I need to decide is whether to grant permission. I have decided that the appropriate approach to take in this case is as suggested by Sullivan J (as he then was) in the case of The Queen on the Application of Vetterlein v Hampshire County Council and Hampshire Waste Services Ltd [2001] EWHC Admin 560. In that case, Sullivan J said: “…I am satisfied that all the arguments open to the claimants on matters of fact and law have been placed before the Court. In the circumstances it would be wholly artificial to consider the by now academic question: is the claimant's case arguable? …I am in a position to determine the substantive application for judicial review on its merits.” Applying this approach, I therefore grant permission.
It is not necessary in this case to recount any facts relating to the Claimant prior to the summer of 2009. The facts subsequent to the summer of 2009, which are of relevance, are as follows. On 20 th July 2009, the Claimant completed a Personal Budget Supported Self-Assessment Questionnaire (SAQ). This was completed with the support of her Social Worker. Page 1 of this document states: “Once the form is completed we will let you know as soon as possible if you are eligible for support. If you are, we will tell you how much funding will be available to help meet your needs, taking into account any contribution you need to make. You can then use this information to help you to develop a support plan, with the help of a professional and/or those who are close to you. This plan will tell us how you wish to use this funding to meet your individual needs and objectives.” There then follows an 'N.B.' “The supported self-assessment is a tool in continuous development and does not guarantee any particular allocation of funding.”
The 20 th July 2009 SAQ resulted, in Mrs Savva's case, in an allocation of a 'points score' of 16 points under a formula known as the Resource Allocation System (RAS). A helpful description of the RAS appears in Appendix 1 (Glossary) to a document 'Common Resource Allocation Framework' dated October 2009 produced by the Directors of Adult Social Services. It defines the RAS in this way:
“A clear and rational way to calculate how much money a person is likely to need to arrange support. This helps the person understand how the amount of money has been arrived at, and to make choices and direct the way their support is provided.”
The Response by the Defendant to the Part 18 Request by the Claimant describes the RAS in a not dissimilar way:
“The RAS tool is a mathematical tool which has been promoted by the DH and adapted for use by the Council. The rationale behind the tool is to ensure objective consistent needs-based decision making in the context of community care. The RAS tool is designed to help the Panel in its analysis. It generates an indicative budget only.”
When the 20 th July 2009 RAS was translated into a monetary value, it came to £82.91p per week. The funding was adjusted to £132.56p, and this was then increased to £170.45p.
The Claimant completed another SAQ on 19 th November 2009, after her discharge from hospital. At the same time, the assigned Social Worker began work to produce a detailed Functional Assessment of Care Environment (known as a FACE Overview Assessment). This document sets out the details of the services provided, and, for example, it makes particular comments on diet and nutrition. These comments are worthy of repetition:
“Mrs Savva states she can only eat fresh products due to her heart condition and diabetes. She reports that she has always eaten fresh food and it is very important to her to be able to maintain this. She prefers to eat food such as fresh fish, meat, vegetables and fruit. She feels that for this reason she needs shopping to be done on a regular basis. Mrs Savva would prefer shopping to be done on a daily basis.”
The Social Worker observes a decline in skills from the last time that Mrs Savva had been assessed, but, notwithstanding that decline, she assessed her level of functioning as not to have changed since her hospital admission. She states that she felt that her personal budget could be used in a more effective way to ensure that her daily living needs were met. She places the categories of “managing personal and daily tasks” and “health and safety”, however, within the four bands of care risk as “substantial”, the second highest.
The Resource Allocations Panel (Mr Thomas Brown, the Head of Assessment, Adult Social Care) and Ms Gretta Mulrooney (Team Manager, Older People Care) met on 21 st December 2009 to consider a new personal budget allocation. The “indicative budget” generated by the November 2009 RAS, when translated from a points score of 28 points to a monetary value, amounted to £112.21p. This sum, of course, was an increase from the £82.91p generated subsequent to the July SAQ. This sum was then adjusted to £142.02p per week.
What then happened, according to the explanation in the Defendant's grounds for Resistance, was that after:
“analysing the claimant's needs in the round, the panel considered that the 'indicative budget' of £142.02p per week was too low and did not properly meet the Claimant's needs particularly in terms of meal preparation. Therefore, the panel increased the indicative figure and allocated a weekly budget of £170.45 to the Claimant.”
It is this decision that is challenged in these proceedings.
The grounds for challenge
Mr Buttler, on behalf of the Claimant, summarises the Claimant's case in his skeleton argument dated 14 th February 2010 by way of three submissions:
(i) The Defendant's system for calculating budgets is inadequate to discharge the statutory duty to provide care services adequate to meet an individual's assessed needs;
(ii) The Defendant's reasons were inadequate to discharge the duty to provide adequate reasons for the decision to allocate the Claimant a personal budget of £170.45p per week;
(iii) The Defendant assessed the Claimant's needs to have increased substantially between July 2009 and December 2009, yet decided to keep the personal budget constant, at £170.45p per week. It is submitted that, in the absence of a proper explanation, this is irrational.
I deal with each of these challenges in turn.
The Defendant's system for calculating budgets is inadequate to discharge the statutory duty to provide care services adequate to meet an individual's assessed needs.
The underlying statutory provisions are, first, s 2(1) of the Chronically Sick and Disabled Persons Act 1970. This states:
“Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area 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, namely….
[provision of certain types of assistance]
Then…it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29”.
The next statutory provision is s 47(1) of the National Health Service and Community Care Act 1990. This provision states:
“…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...
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