R (KM) v Cambridgeshire CC
| Jurisdiction | England & Wales |
| Judge | LORD DYSON,LORD KERR,LORD WALKER,LORD PHILLIPS,LADY HALE,LORD WILSON,LORD BROWN |
| Judgment Date | 31 May 2012 |
| Neutral Citation | [2012] UKSC 23 |
| Date | 31 May 2012 |
| Court | Supreme Court |
[2012] UKSC 23
Lord Phillips, President
Lord Walker
Lady Hale
Lord Brown
Lord Kerr
Lord Dyson
Lord Wilson
Appellant
Ian Wise QC
Stephen Broach
Ben Silverstone
(Instructed by Scott-Moncrieff & Associates LLP)
Respondent
J Richard McManus QC
Jonathan Auburn
Benjamin Tankel
(Instructed by Cambridgeshire County Council Legal Services)
Interveners (The National Autistic Society; The Guide Dogs for the Blind Association; SENSE; The Royal National Institute of Blind People)
Richard Gordon QC
Victoria Wakefield
(Instructed by Irwin Mitchell LLP)
Intervener (Secretary of State for Health)
Nathalie Lieven QC
Tim Buley
(Instructed by DWP/DH Legal Services)
Heard on 7 and 8 February 2012
LORD WILSON (WITH WHOM LORD PHILLIPS, LORD WALKER, LORD BROWN, LORD KERR AND LORD DYSON AGREE)
The appellant, KM, is a profoundly disabled man aged 26. He lives in Cambridgeshire with his mother, by whom he acts in these proceedings, and with his brother aged 19 and his sister aged 18.
In the proceedings, brought by way of judicial review, the appellant challenges a determination made by Cambridgeshire County Council ("Cambridgeshire") and communicated, at the latest, by a letter dated 3 June 2010 to pay him (in round numbers and as an annual sum) £85k in discharge of its duties to him under section 2(1) of the Chronically Sick and Disabled Persons Act 1970. He contends that the determination was unlawful either because it was not adequately supported by reasons or because it was irrational. He asks that the determination be quashed and either that Cambridgeshire should conduct a re-determination of it or that the court should itself substitute for it a determination that the annual sum payable to him be £120k.
On 26 November 2010 His Honour Judge Bidder QC, sitting as a deputy judge of the Queen's Bench Division, Administrative Court, refused to grant the appellant permission to make the application for judicial review: [2010] EWHC 3065 (Admin). The Court of Appeal (Sir Anthony May, President of the Queen's Bench Division, and Jackson and Tomlinson LJJ) granted the permission which the judge had withheld and ordered pursuant to CPR 52.15(4) that it should itself conduct the hearing of the substantive application for judicial review. On 9 June 2011, however, by a judgment delivered by the President on its behalf, [2011] EWCA Civ.682, (2011) 14 C.C.L.Rep.402, the court dismissed the application. It is against its dismissal of his application that the appellant appeals.
In its judgment the Court of Appeal gave four reasons for its decision. Its first, set out at para 23, was as follows:
"(a) the local authority, whose funds are not limitless, are both entitled and obliged to moderate the assessed needs to take account of the relative severity of all those with community care needs in their area…"
It is true that constraints upon its resources are a relevant consideration during one of the stages through which a local authority must pass in computing the size of a direct payment owed under section 2 of the 1970 Act. In paras 15 and 23 below I will identify four such stages; and constraints upon an authority's resources are undoubtedly relevant to the second stage. But the leading exposition of the law in this respect is to be found in the speeches of the majority of the appellate committee of the House of Lords in R v Gloucestershire County Council ex p Barry [1997] AC 584; and, if and insofar as it was there held that constraints upon resources were also relevant to what I will describe as the first stage, there are arguable grounds for fearing that the committee fell into error: see the concerns expressed by Baroness Hale in R (McDonald) v Kensington and Chelsea Royal London Borough Council [2011] UKSC 33, [2011] PTSR 1266, at paras 69 to 73.
Mr Ian Wise QC, who represents the appellant in the present proceedings, drafted the grounds of appeal to this court on the very day, namely 6 July 2011, when its judgments in the McDonald case were delivered. Such were the circumstances in which he sought to fortify his challenge to the Court of Appeal's reference to the relevance of constraints upon Cambridgeshire's resources with a ground of appeal ("the third ground") that the decision of the committee in the Barry case had been wrong and that, pursuant to Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, this court should depart from it. Following its grant of permission to appeal, this court granted permission to four charities to intervene in the appeal and thus to make submissions; but the court limited the scope of their intervention to the third ground. The court also granted permission to the Secretary of State for Health to intervene; and, although it did not formally define the scope of his intervention, the primary basis of his application had been a wish to make submissions upon the third ground.
When, however, on 7 February 2012, the hearing of the appeal in this court began, it soon became apparent that, in referring to the relevance of constraints upon a local authority's resources, the Court of Appeal had introduced a point which Cambridgeshire had not itself put forward and which—in the context of the particular inquiry for which the proceedings called — it felt unable to defend. As I will explain, the inquiry relates to the lawfulness of its determinations at what I will describe as the third and fourth stages of the exercise mandated by section 2 of the 1970 Act; and it is common ground that, subject to one matter, constraints on an authority's resources are irrelevant to either the third or the fourth stage. The one matter is that it is always open to an authority to decide to meet a particular need by the provision of a cheaper service — so long as it duly meets it — rather than of a more expensive service; such is an elementary aspect of financial management and is better not even included within the debate about the relevance of constraints upon an authority's resources to the discharge of its duty under section 2 of the 1970 Act. It thus also quickly became clear at the hearing that the issues about what the Barry case had decided in relation to the first stage of the exercise, and, in the light thereof, about whether this court should depart from the decision, were irrelevant. The court therefore ruled that it would not, after all, hear argument on the third ground; and perhaps apologies are due in that regard, in particular to the charities and those who represent them. In what follows it will therefore be important to say as little as possible—and certainly nothing controversial—about the decision in the Barry case.
The appellant was born without eyes and suffers septo-optic dysplasia, which has manifested itself as a lack of optic nerves and an abnormal development of the part of his brain which should have connected with the optic nerves. He has other medical problems, including a growth hormone deficiency, spinal disease and lung and hearing problems. He has learning difficulties and an autistic spectrum disorder. But he is intelligent and articulate. He can type and use Braille. He has obtained GCSE passes in French and music. He spends substantial periods in his music room, playing the piano, the clarinet and the drums. He is keen on jazz and composes his own rhythm and blues music. When in 2006 a Welsh social worker visited him, he went to the piano, played the Welsh national anthem and sang it correctly in Welsh. That is remarkable.
The appellant needs substantial support in feeding and self-care and in many other aspects of daily living. He struggles to tell the difference between hot and cold and has a fear of burning himself. He needs assistance in the use of a knife and fork. Outside the home he needs a guide. The burden of caring for him has been a source of acute stress for his mother and, to a lesser extent, for his brother and sister. In 1995 the family moved to Cambridgeshire and there is a long history of conflict between the appellant's mother and Cambridgeshire about the scale of support to be provided for him. She accuses Cambridgeshire of being too slow to respond to his needs and it accuses her of being consistently uncooperative and antagonistic towards its officers. But the stress upon her of caring for the appellant provides significant mitigation for any regrettable conduct of that sort.
In the years prior to 2008 the appellant was the subject of various residential placements, funded by Cambridgeshire. For different reasons they all broke down. Since May 2008 he has been living back at home. In 2010 he began to attend college for three days a week; but after several months he ceased to do so. Until October 2010 the family lived in council accommodation which was unsuitable for his needs. It also had only three bedrooms so, even at their ages, his brother and sister had to share a bedroom. Now, however, the family occupies more suitable privately rented accommodation, with four bedrooms, in the same village.
Section 29 of the National Assistance Act 1948, as amended, assigns specified functions to local authorities in relation to disabled people. Still cast largely in the language of that era, it provides:
"(1) A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall, make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons who are blind, deaf or dumb, or who suffer from mental disorder...
To continue reading
Request your trial
-
Krupecki v The Minister for Justice and Equality No.2
...from the inherent powers of the court' rather than from specific English rules of court. In R. K.M. v. Cambridgeshire County Council [2012] UKSC 23 at 38 Lord Wilson for the UK Supreme Court referred to the ' fully formed inquiry' that was enabled by ' the amplification of ...reasoning...i......
-
The Queen (on the application of Luke Davey) v Oxfordshire County Council The Equality and Human Rights Commission (Intervener)
...the reasonable cost of securing provision of those services, if the person qualifies for direct payments (see R(KM) v Cambridgeshire CC [2012] UKSC 23 per Lord Wilson at §§15 and 23 and per Lady Hale at §45). Independent Living Fund 15 The ILF was a body which operated in partnership with l......
-
Cait Cotter (a child, by her mother and litigation friend, Natasha Cotter) v The National Institute for Health and Care Excellence (“NICE”)
...Mr Wise QC said that the intensity of the review will depend on the impact of the determination under challenge. He referred to R(KM) v Cambridgeshire CC [2012] UKSC 23; [2012] PTSR 1189, in which Lord Wilson said, at paragraph 36, “I agree with Langstaff J in R(L) v Leeds City Council [2......
-
The Queen (on the application of AB) v The London Borough of Ealing
...38 I was also referred by Ms Hafesji to the decision of the Supreme Court in R (on the application of KM) v Cambridgeshire County Council [2012] UKSC 23, [2012] PTSR 1189 for the proposition that the intensity of judicial review in a case such as the present should be high given the profund......
-
ENLARGED PANELS IN THE COURT OF APPEAL OF SINGAPORE
...of State for the Home Department v AF (No 3) [2010] 2 AC 269; R v F [2012] 2 WLR 1038; R (KM) v Cambridgeshire County Council [2012] 3 All ER 1218; R v Oakes [2013] QB 979; and Willers v Joyce (No 2) [2016] 3 WLR 534. 105 Senior Courts Act 1981 (c 54) (UK) s 59. 106 Report of the Interdepar......