Supreme Court starts hearing "biggest community care case in 15 years"

The Supreme Court is this week hearing a landmark case on the extent to which a local authority is able to take its financial resources into account when meeting assessed needs for social care.

In a case described by the claimant’s lawyer as potentially the biggest in community care for 15 years, the seven justices will also consider the use of Resource Allocation Schemes (RAS) by local authorities.

The case is being brought on behalf of KM, a 26-year-old man with a range of serious physical and mental disabilities.

To work out the appropriate payment in his case, Cambridgeshire County Council – the local authority responsible for his care – applied an RAS, a tool that calculates funding in respect of needs based on the average funding made available to those with particular needs in the local authority area.

The council also made additional funding available through an Upper Banding Calculator, which it uses in severe cases such as this.

Cambridgeshire calculated the direct payment required to provide for KM’s assessed needs as £84,678 a year.

An independent social worker had also assessed KM’s needs – an assessment that the council agreed with – but estimated that the annual cost of supporting him was in fact £157,060.

His mother argued that the amount proposed by Cambridgeshire was insufficient and had been irrationally arrived at.

The local authority won the case in the Court of Appeal in June 2011. Sir Anthony May, President of the Queen’s Bench Division, said the judges were sympathetic to the claimant’s submission that Cambridgeshire did not give adequate reasons “since the process by which they eventually arrived at an intelligible explanation of the £84,678 was….tortuous”.

However, Sir Anthony went on to say that an intelligible eventual explanation was given (on 3 June 2010) and that this explanation was rational. The Court said there did not need to be a “finite absolute mathematical link” between the needs and the assessed direct payments.

The judge also said that local authorities “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”.

The key issues being considered by the Supreme Court in KM are:

• Whether the House of Lords ruling in R v Gloucestershire CC ex p Barry [1997] AC 584 – permitting local authorities to take their resources into account – was correctly decided and, in consequence, whether Resource Allocation Schemes are a legitimate means for local authorities to apply to determine funding to be made available to persons in need by means of ‘direct payment’?
• If Barry was correctly decided, and Resource Allocation Schemes acceptable, what level of explanation must the local authority provide of the sum awarded and whether sufficient reasons were given in the case of KM?
• Whether Cambridgeshire’s decision in this case was irrational because the amount awarded was manifestly insufficient to meet the appellant’s assessed eligible needs?

The claimant’s appeal to the Supreme Court has been backed by four national charities: Sense, Guide Dogs, the National Autistic Society, and RNIB.

The charities want Barry to be overturned, arguing that each individual should be assessed in the first instance in terms of what care they need, rather than the local authority’s financial position.

Irwin Mitchell, KM’s lawyers, said that if the appeal were to be successful, it would mean that every local authority in England and Wales would have to reconsider how it assessed the needs of disabled people.

The Secretary of State for Health, Andrew Lansley, has intervened in the case.

Alex Rook, from the Public Law team at Irwin Mitchell, said: “This is potentially the biggest community care case for 15 years. The court will hear submissions on behalf of the national charities that they seek to end the inequity of the current situation and determine once and for all that care needs are care needs regardless of the local authority in question. Each of the charities firmly believe that a person’s individual needs are the same regardless of whether they live in Hackney or Harrogate.

“Our clients have long campaigned to ensure there is complete transparency in terms of what an individual’s care needs are. Despite the difficult current economic climate, this should not mean that people miss out on the crucial social care they need.”