Home > Cases > R (Savva) v Kensington & Chelsea [2010] EWCA Civ 1209

The claimant was a disabled person who had a number of serious health problems. She lived alone in a basement flat, and was unable to go out without assistance. The claimant had been in receipt of care services from the defendant local authority for about ten years. In the course of 2009, the authority carried out a review of her care plan. She completed a self-assessment questionnaire (SAQ) with the assistance of her social worker, which gave rise to a score of 16 points on the authority’s system.

The point score was then fed into the resource allocation system (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 authority’s Resource Allocation Panel (the panel) which, having considered the totality of the material, decided upon a personal budget of £170.45 per week. There was some deterioration in the claimant’s health between July and November and she completed a fresh SAQ which generated a points score of 22. When that 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 authority later explained 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.

On 22 December, the authority wrote to the claimant notifying her of the decision that the claimant’s allocated budget would remain the same, namely £170.45 per week, and stating that the decision would be subject to review at least annually or at any time that it was felt that the claimant’s needs had changed. She applied for judicial review of the decision. The grounds of challenge included: (i) a challenge to the lawfulness of the authority’s method of calculating personal budgets; and (ii) a complaint that the authority had not provided adequate reasons for its calculation of her personal budget. On 11 March 2010, the decision of 21 December 2009 was quashed on the basis of a failure to provide adequate reasons. However, the judge rejected the ground of challenge which asserted that the method of calculation was unlawful. The claimant appealed on the unlawfulness issue and the authority cross-appealed on the reasons issue.
The claimant submitted that because s 2 of the Chronically Sick and Disabled Persons Act 1970 required the eligible person’s assessed needs to be met in absolute terms, it was wrong for the authority even to consider what an individual’s needs were in relative terms or to use relative needs as the starting point for the calculation of the personal budget allocated to meet the individual’s needs. A further, an issue arose as to whether the context of the instant case was one in which the common law required reasons to be given. Consideration was given to various documents produced by government departments and by the Association of Directors of Social Services relating to information about how personal budgets were arrived at (see [12] of the judgment), and to the relevant legislative provisions, namely, s 57 of the Health and Social Care Act 2001 and the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009, SI 2009/1887.

Held: appeal and cross-appeal dismissed.
(1) It was clear that the figure generated by the RAS had not been used as anything other than a starting point or indicative allocation. It was the start rather than the end of the process. It could not be said that the authority had ever lost sight of the fact that, once the claimant’s eligible needs had been assessed, it was under an absolute duty to provide her with the services that would meet those needs or a personal budget with which to purchase them. The authority was entitled to use methodology recommended by the Department of Health which did not have the effect suggested by the claimant. It followed that the judge had been correct to refuse a declaration that the RAS was an unlawful basis for determining a personal budget. Its deployment as a starting point was lawful (see [18] of the judgment).
(2) When an authority converted an established right – the provision of services to meet an assessed eligible need – into a sum of money, the recipient was entitled to be told how the sum had been calculated (see [20] of the judgment).

If an authority were entitled to notify a bald figure without any explanation, the recipient would have no means of satisfying himself or herself that it was properly calculated. Further, an absence of explanations might make it impossible to mount a challenge to such decisions, whether by way of complaint or by way of litigation (see [20] of the judgment).
In the instant case, the judge had concluded that fairness required the provision of reasons. He had been right to emphasise the need for transparency in the decision-making process. While the burden to provide reasons would not be insignificant, it was what simple fairness required. It would be adequate in the instant case to list the required services and assumed timings, together with the assumed hourly cost.

That would not be unduly onerous. It was appreciated that some recipients required more complicated arrangements which would call for more expansive reasoning but if that was what fairness required, it had to be done. Further, it was for the panel to provide or approve the reasons in a document. Any other means of communication would lack the necessary authority and consistency.

Philip Coppel QC for the Appellant; Nathalie Lieven QC for the Respondent.

Click here for the judgment.

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