R (on the application of B) v Cornwall County Council & Brandon Trust (Interested Party) (2009) EWHC 491 (Admin)

The Claimant (B) challenged, by way of Judicial Review, the defendant county council’s decision to increase his contribution towards his care costs from nil to £68.50. B, who has moderate learning disability and a history of challenging behaviour, had resided in supported living accommodation since 1993. In 2005-6 the Health Care Commission and CSCI produced reports which were severely critical of the care provided to vulnerable adults by the local NHS Trust. One of the recommendations within these reports was for more ‘person centred planning’ and, as a consequence of the implementation of this recommendation, B was reassessed and deemed as no longer fitting the criteria for NHS continuing healthcare. Between 2006 and January 2008 the local authority exercised their responsibility towards B through an independent Trust (the interested party in this case) whilst consultations took place as to how best to provide services for service users; thereafter the local authority took over direct responsibility for providing his care.

Various assessments of B’s needs were made by the authority during the course of 2007-2008. The first focusing on his income and expenditure took place in May 2008 and was conducted by the Senior Financial Officer for the local authority following consultation with B’s parents and support worker. This assessment concluded that B should not be required to pay anything towards the cost of his care because information provided by his parents had demonstrated a higher level of disability-related expenditure [‘DRE’] (including contributions towards holiday costs) than the local authority had previously accounted for.

Under s.17 of the Health and Social Services and Social Security Adjudications Act 1983 a local authority has a power to charge for non residential services provided the charge is reasonable and the service user has means to pay. Furthermore any charges must comply with Section 47(4) of the Community Care Assessment Directions 2004 which requires that:

the local authority must consult the would be service user and, if appropriate any carers, take all reasonable steps to reach agreement with the person and, where they think it appropriate, any carers of that person, on the Community Care Services which they are considering providing to him to meet his needs and must provide information to the person and, where they think it appropriate, any carers of that person, about the amount of the payment (if any) which the person will be liable to make in respect of the Community Care Services which they are considering providing to him.”

The ‘Fairer Charging Policies for Home Care and Other Non-residential Social Services’ Guidance issued by the Department of Health in 2003 allowed local authorities discretion as to the design of their charging policies but did stress that an authority should have regard to the effect of any charge on a user’s net income, which should not be reduced below the level of Income Support plus 25%. Disability benefits need not be taken into account as income at all. However, where they are taken into account the authority should assess DRE which must be set off against income to ascertain available income against which any charge may be levied. The guidance recommended that “assessments involving [DRE] should … normally be carried out by personal interview in the user’s own home”.

A review by the local authority in June 2008 noticed that the local guidance in respect of charging had been inconsistently applied to service users to the benefit of those service users transferring into the local authority’s care from the NHS trust. In particular it was noted that additional expenditure not normally assessed as DRE was included within this category and/or the service user had not met the requirement of local guidance in respect of evidencing their need for such expenditure. As such the local authority set about reviewing the assessments alongside the care plans. This was conducted as a paper exercise without involving service users or their carers although the local authority did attempt to notify those who might be affected that this review was underway.  B’s parents were later notified by letter that as a result of this review his contribution has been reassessed from nil to £68.50 a week and that this charge would apply from October 2008.

Originally B challenged the decision on the basis that the earlier assessment had given rise to a legitimate expectation that B would not have to contribute towards the cost of his care. This was not argued at the substantive hearing and the Judge commented that this was ‘unarguable’ as B’s parents had been made aware that the Local Authority would charge if an assessment of his net income allowed them to do so. The earlier decision in May could not bind the local authority for all time, nor could it if the assessment was flawed in some way.

In addition he challenged the decision on the basis that the Local Authority had failed to properly assess his needs and to correctly construe and follow guidance. The Local Authority argued that, whilst it might have failed to sufficiently engage with B’s parents during the reassessment, that they had made numerous offers to meet and reconsider the assessment on the basis of any new evidence they might put forward, but that these had been rejected.

The Court, finding in favour of the applicant, held that the Local Authority had acted unlawfully in failing to consult with B and his parents as was required under the Community Care Assessment Directions 2004 and relevant guidance. The correct approach was to identify B’s eligible needs, devise an appropriate plan to alleviate those needs and then consider whether the cost of such provision was DRE. The approach that the authority had taken in devising the care plan, including refusing to accept certain heads of expenditure as DRE, was unlawful. It was clear to the Judge that there was evidence within the care plan justifying the extent of the DRE, but in addition he made clear that the authority could not, on the one hand, identify care needs within the care plan then, on the other, determine that because of a lack of evidence available these needs would not be met if they had also failed to offer B and his parents the opportunity to provide the necessary evidence.  It was the Local Authority’s duty (under s47 NHSCCA) to fully assess a person’s needs and this responsibility could not be transferred to the applicant requiring him to provide evidence of his need.

The Judge was critical of the Local Authority’s guidance in respect of the exclusion of holiday expenses as DRE, partly because (as the Authority later accepted) the additional expenses incurred by requiring a carer to attend could be legitimate DRE, but he was also critical that the Authority applied their own guidance so rigidly, effectively fettering any discretion of the Local Authority.

The Judge rejected the Local Authority’s position (that their subsequent offers to meet with B’s parents and reassess if further evidence were produced) offset their earlier failings to consult on the basis that ‘post-decision steps cannot make valid an unlawful decision’ and because he did not accept that B has not suffered prejudice.

The decision to increase the charges to £68.50 was quashed and the Local Authority ordered to complete a reassessment.

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