S, R (on the application of) v Birmingham City Council

MR JUSTICE SULLIVAN: This application for permission to apply for judicial review was lodged on 19th October 2006. Since then, matters have moved on considerably and what is now challenged by the claimant falls under two headings. First of all, the rationality of the conclusion, in a review of her needs on 13th March 2007, that she needs 164 hours of care per week. Secondly, a decision by the defendant, set out in a letter dated 29th June 2007, refusing to increase the weekly payment for the claimant at 35 Hill Top View.

Following various directions and adjournments, the position now is that this hearing for permission to apply for judicial review shall stand as the substantive hearing if the judge hearing the application considers it appropriate. For reasons which I will set out, I am satisfied that permission to apply for judicial review should not be granted, so there is no need for any further substantive hearing.

I will set out the background to the two decisions that are now under challenge. The claimant is today 26 years old. Her needs have been described as critical, "off the scale" in terms of the defendant's own criteria for assessing social service needs. She suffers from severe learning disabilities, autistic spectrum disorder, epilepsy and extremely challenging behaviour. She requires 24-hour support a day for 7 days of the week. She has been cared for, to her very considerable benefit, by Mr Langston at her current care placement 35 Hill Top View. Hill Top View is a very small, two-person residential home, run by Mr Langston, it has been assessed as providing an excellent quality of care, and by all accounts the claimant is thriving in the home. She was placed in Hill Top View as a matter of some urgency because of problems with an earlier placement.

The defendant council and Mr Langston entered into an individual contract placement agreement. The individual contracted weekly price was not based on a given number of hours of care to be purchased each week but was a figure of £2,500 per week. Mr Langston had proposed a particular package of care, as set out in his care proposal. It was going to be based around 24-hour, permanently allocated, one-to-one staffing. There were going to be two daytime staff to two residents, and one sleeping and one waking night staff to two residents. The proposal was set out in his proposed care package specification. At that time what is accepted as having been a fairly rushed and superficial assessment judged that the number of hours of service that would need to be provided would be 118 per week, but it is clear from the documentation that the figure of £2,500 was not based on 118 hours at any given rate per hour, rather it was based on the assessed costs of the package that was being proposed by Mr Langston at that time.

Mr Langston concluded that the care that he was delivering to the claimant was more extensive than he had envisaged and sought an increase in funding. The defendant declined and that ultimately led to judicial review proceedings. The defendant agreed to review the claimant's needs and that led to the reassessment of the number of hours care required by Mr O'Farrell, one of the defendant's senior social workers. Mr O'Farrell has set out in a witness statement filed on 21st June 2007 how he arrived at the 164 support hours per week figure.

On behalf of the claimant, Mr Hyam submitted that the figure of 164 hours per week was irrational. The principal reason was that it made no allowance for training or induction; and the further reason was that there was no allowance for the fact that there would be some two-to-one care. The latter proposition is not correct. There is an allowance for that at some stages, but, equally, at other stages, for example during the night, Mr O'Farrell's calculations recognise that, while there would be two staff available for two "clients", one of the staff will be sleeping. It has to be borne in mind that this is a judicial review claim; it is not an appeal on the merits against the number of hours that a social worker considers appropriate. If one wants to challenge that, then the proper mechanism is to either go through the council's own complaints procedure and/or to complain to the Local Government Ombudsman if it is thought that there has been maladministration in the manner in which the hours were calculated.

It seems to me that there is no conceivable basis on which it can be said that Mr O'Farrell's approach was irrational. He clearly considered in detail what care was needed, and the hours are set out in detailed summaries dealing with each particular activity, for example assistance when getting up, assistance when going to bed, assistance with personal care and so forth. In truth there is, as Mr Vanhegan pointed out on behalf of the defendant, relatively little dispute between the parties as to the number of hours direct care that needs to be provided to the claimant herself, bearing in mind that one member of staff is awake while the other member of staff is sleeping during the night-time hours. On Mr Langston's own figures, there is just a little more than 152 hours of direct care provided. However, his figures include additional hours for such things as induction training, training, management and so forth. The criticism of Mr O'Farrell's figures, that they do not include allowances for those matters, is not justified. Effectively what Mr Hyam is doing is comparing apples and pears. What Mr O'Farrell was concerned with was to assess the number of hours care that the claimant herself required.

On any basis, anyone providing services in a care home will need to supply management, will need to make provision for training and other matters and at the end of the day will hope, unless they are a charity, to make a profit. Those elements of the calculation are, as the defendant explains, covered in cases where there is an hourly rate in the hourly rate that is paid by the council, which exceeds the cost of employing a care worker per hour. It seems to me that that is an entirely rational basis on which to approach the matter. Effectively the social worker's assessment by Mr O'Farrell concentrates on matters within his expertise (that is, what care is actually needed by the claimant) leaving other commercial or management matters to be covered by the hourly rate or, in the case of an individual contract, by the weekly figure agreed between the defendant and the service provider. So that in short there is simply no basis for the contention that the 164-hour figure is irrational. As I say, even if there were, judicial review is not the appropriate vehicle for effectively arguing that 164 hours should be a somewhat higher figure.

I move on to the second aspect of the challenge, which is to the defendant's refusal to increase the weekly payment. The weekly payment has been increased to a sum a little over £2,700 per week because the defendant applies the same percentage increases in respect of inflation to a spot contract such as this as it does to contracts to provide care on an hourly basis.

The defendant's reasons for not increasing the figure beyond the £2,700 are set out in some detail in the letter of 29th June 2007 from the defendant to the claimant's solicitor. I am bound to say it is very difficult to see how it can be said that the reasons set out in that decision are irrational. On behalf of the claimant, the underlying submission was that because there had been an increase in the number of care hours from the 118 hours, which had been assessed initially, to 164 now, it was irrational not to increase the payment. But that argument would be good only if the initial contract had been based on 118 hours and it is perfectly clear for the reasons that I have set out above that it was not based on that assessment, rather it was based on the overall care package proposed by Mr Langston, which he has continued to deliver.

The 118 hours was, even on the claimant's own case, merely a superficial assessment that had been done in something of a rush, and certainly there was no question of the figure of £2,500 being based on the 118 hours at £X per hour. What has happened in reality is that Mr Langston has concluded that the package which he agreed to provide, and has continued to provide, costs him somewhat more than he expected initially. However, that is not an infrequent occurrence in what is essentially a commercial agreement between a supplier and the defendant council. The contract itself contains a dispute resolution mechanism, it provides that any dispute between the provider and the council shall be resolved through, in the case of contractual matters, the Deputy Director (Strategy) of Health. That would be the appropriate mechanism for resolving such contractual disputes and the court should be very wary indeed before intervening in what are essentially private law disputes between service providers and the defendant. I accept, of course, that it is possible that there might be a public law dimension, given the claimant's interest in the service provided Mr Langston, but this court would intervene only where it was plain not simply that there was a commercial dispute but that the defendant's conduct was unreasonable in the Wednesbury sense. As I have said, once the proposition that it is unreasonable not to take account of the increase from 118 hours to 164 is discounted because there was no initial reliance on the 118 hours, then it is really quite impossible to see how the explanation set out in the 29th June 2007 letter can be said to be irrational. Very much in summary, the council contend that at the rate of just over £2,700 per week it is paying, applying its normal hourly rates, for a great deal more than 164 hours per week, and, overall, the defendant is concerned that Mr Langston is not running 36 Hill Top as an "efficient business". Whether the defendant is or is not right in taking that view is not for this court to determine in judicial review proceedings. Mr Hyam has to demonstrate some error of law in the council's approach, error of law of course including unreasonableness, but it is quite impossible for the claimant to get over that threshold in this case.

Lastly, it is said that it is irrational for the council not to increase the rate unless it is able to show that the same level of care can be provided elsewhere. I do not accept that the council is under any such obligation. At a certain stage of the argument it appeared to be suggested that the council had to demonstrate that exactly the same level of care would be provided elsewhere at a cheaper rate, but that is simply not the position. The claimant is entitled to the number of hours care set out in her care plan. If Mr Langston decides to terminate his agreement with the council, then the council will have to ensure that that number of hours care is provided. That is a bridge that the council will have to cross when it gets to it; it is not obliged, at this stage, to identify some alternative provision.

Mr Hyam's submissions, at times, came perilously close to placing the defendant in the position, effectively, of having to accept what Mr Langston demanded by way of a weekly fee. Plainly that cannot be the position. A defendant or a local authority in this position must be entitled to say to a supplier, in a supply contract, "You are asking too much. We are not prepared to pay that amount." That is what this defendant has done and, on the available figures, whilst Mr Langston and those representing the claimant may well disagree with the council, it cannot be said that the council's approach is irrational. For these reasons I dismiss this application for permission to apply for judicial review.

MR HYAM: I am legally aided so I would simply seek a detailed legal aid assessment of the claimant's costs. I do not know if costs are being sought by Mr Vanhegan.

MR JUSTICE SULLIVAN: I would have thought, since the parties have a continuing relationship, it might not be a good idea, I would hope, to press any application for costs.

MR VANHEGAN: Yes, we would agree with that.

MR JUSTICE SULLIVAN: Thank you. Then you may have your detailed assessment for your publicly funded costs, Mr Hyam. Thank you very much indeed.