B, R (on the application of) v Cornwall County Council & Anor

The Claimant, “B”, is a 48 year old man with a moderate learning disability, who presents with challenging behaviour. Since 1993, he has lived in supported living accommodation in Newquay, Cornwall, with three other residents with learning disabilities. I shall refer to that accommodation as “C”. B is close to his parents (“Mr & Mrs B”), whom he visits almost every weekend for three nights: and they are actively interested in his welfare at C. In view of B’s disability, they are involved in most decisions affecting B’s care. Mrs B is B’s appointee, and manages his income.

Despite a change in the provider of care for the residents of C in January 2008 (from the Cornwall Partnership NHS Trust to the Defendant local authority (“the Authority”)), until August 2008 B was not required to make any contribution towards the costs of his care at C. However, by a letter dated 8 August 2008, the Authority advised B that it had assessed his liability to contribute and, after a transitional period during which he would pay nothing until October 2008 and only £30 thereafter until October 2009, he would be charged £68.50 per week by way of contribution.

It is that decision, to increase his contribution from nil to £68.50 per week that B challenges in this claim.

Section 17 of the Health and Social Services and Social Security Adjudications Act 1983 (“the 1983 Act”) gives local authorities power to charge for services they provide, as follows:

That charging power is subject to Section 7(1) of the Local Authority Social Services Act 1970 (“the 1970 Act”), which provides that:

In relation to community care services, the objectives of the legislative scheme are broad and enabling. It has been said, with justification, that: “The promotion of independent living is a core - perhaps the core - principle underpinning the community care legislation” (“Community Care and the Law”, Clements & Thompson, The Tollett Group, 2007 (4th Edition), at Paragraph 4.44). That purpose is also emphasised in the guidance the Secretary of State has issued under Section 7 of the 1970 Act, “Fairer Charging Policies for Home Care and Other Non-residential Social Services” (Department of Health, September 2003) (“the 2003 Guidance”), where the overall objectives are said to be “to promote the independence and social inclusion of service users” (Paragraph 3: and see also Paragraph 15 to the same effect).

In relation to such services, a responsible local authority is required to make an assessment of a disabled person’s needs, then decide what (if any) services they will provide to fulfil any of those needs, and finally determine what charge can and should be levied from the service user (if any). It can therefore be viewed as a three-stage process, although there is considerable interplay between those stages.

I was referred to substantial guidance issued by the Secretary of State in a number of documents both with regard to an authority’s assessment of a person’s needs under Section 47 of the 1990 Act, and in respect of charging for non-residential community care services provided by an authority.

In respect of the former, I was referred to the helpful and (I understand) uncontentious summary of the disparate guidance provisions in Chapter 4 of Clements & Thompson, to which I have already referred. That again emphasises the need for engagement and interaction between the assessing/providing authority on the one hand, and the service user and any relevant carers on the other. For example, “Community Care in the Next Decade and Beyond: Policy Guidance” (HMSO, 1990) at Paragraph 3.24 requires that:

The importance of the care plan is stressed by Clements & Thompson. Whilst there is no statutory reference to “care plans”, “they are essential to the community care process and the subject of detailed policy and planning guidance” (Paragraph 4.2). In Rixon (at page 128), Sedley J accepted that “a care plan is nothing more than a clerical record of what has been decided and what is planned”, but he went on to say that this:

In respect of on-charging to the service user, I was taken to the relevant guidance (the 2003 Guidance) at some length. Some of the main points which arise from it appear to me to be as follows (the paragraph references being those of the 2003 Guidance):

In accordance with the national guidance (see Paragraph 13(vii) above), the Authority issued its own guidance in relation to DRE under three heads, “Evidence”, “Process” and “Reasonable Disability Related Expenditure”. Subject to what I say below, this guidance was in place at the time of the two relevant assessments (May and July/August 2008) and remains in place.

The guidance (of which, as I understand it, B and Mr & Mrs B were not aware at the relevant time) does not aim to be comprehensive. In relation to evidence, it suggests that, where possible, receipts should be seen and recorded. Otherwise, Finance Officers who conduct assessments are told:

In November 2008, the Authority published further guidance, in draft, and in different, tabular form. Although B has not had a further assessment of charges, I understand that assessments have been conducted on the basis of this guidance since December 2008. The guidance in particular indicates what the Authority “requires” as evidence of a particular item. For example, in relation to “excessive household bills due to a medical condition or disability” (e.g. additional power, water, bedding or gardening costs), the evidence required is said to be “Receipts/Bills”. However, for most items for private care, specialist/excessive clothing requirements, personal items, alternative health costs, equipment and transport) the evidence required is usually “Information in care plan”. In reflecting the importance of the care plan, that reflects the national guidance, the standard text (Clements & Thompson) and the comments of Sedley J in Rixon quoted above (Paragraph 12). In relation to holidays, the guidance is: “Holiday period up to 7 days. Maximum cost £500 per year”.

Until 2008, the care costs of B (and the other residents in C) were borne by the Cornwall Partnership NHS Trust (“the Trust”) which was responsible for the care costs of those with continuing health care needs.

In 2005-6, the Health Care Commission and Commission for Social Care Inspection investigated services for people with learning disabilities provided by the Trust, following expressions of concern by families and in the media. The resulting July 2006 Report was heavily critical of the Trust, finding that there had been significant physical, emotional and environmental abuse of vulnerable disabled people in its care. The report was also critical of the Authority, as the appropriate agency for the protection of vulnerable adults, for failing adequately to co-ordinate into agency arrangements and, in particular, for having failed to undertake community care assessments of those using services so that it was impossible to determine if people were receiving appropriate services. Although responsibility for providing services to those with continuing care requirements fell on the Trust, the Section 47 responsibility for assessment fell upon the Authority as the relevant local authority. The report concluded (at page 9) that the Trust and Authority “must ensure that ‘person-centred’ planning is carried out”. The Authority endorsed all of the report’s recommendations at a meeting of its relevant committee on 11 July 2006.

Action had to be taken. Budock Hospital, which was the subject of particular criticism in the report, was closed. Furthermore, and of particular relevance in this case, those who were receiving care through the Trust were reassessed, and many were found not to require continuing care (for which the local NHS Trust was responsible) but only community care (for which the local authority was responsible). Consequently, responsibility for the care of those people (including B, and the other residents of C) moved from the Trust to the Authority. They exercised that responsibility through an independent trust, the Brandon Trust (the Interested Party in this claim)

Because the NHS Trust provided care through the NHS, they did not seek to recover any of the costs from service users. B had paid rent for living at C, and the normal costs of running the household (such as water, telephone, gas and electricity) as well as for clothing, food and laundry: in other words, the costs of living that were not related to his disability at all. However, the Trust had borne all of the costs of B’s care, to which he had not been required to make any contribution. The Authority had traditionally charged those for whom they had provided community care services, into which category B now fell.

With regard to the transfer of responsibility from Trust, the Authority began discussions with the residents of C (or, more accurately, because of the inability of the residents themselves properly to engage, the immediate family of those residents including Mr & Mrs B). There were a number of options. One was to register C as a residential care home. That option had disadvantages: it was thought that it would leave the residents with less net income, and the objectives and ethos of a residential care home are very different from supported living. It was agreed (at a meeting on 20 November 2006, confirmed at a further meeting on 19 April 2007) that C should remain in supported living accommodation.

It appears from the minutes of those meetings that financial matters were not at the forefront of those discussions, but they were at least mentioned under “Other topics raised” at the April 2007 meeting. It is minuted:

At a further meeting on 5 July, Ms Sue Colliver (a Senior Finance Officer in the Domiciliary Charging Unit of DASC) attended and:

That was the last meeting before the changeover of responsibility from the Trust to the Authority in January 2008. So far as B was concerned, Mrs B said (First Statement 25 November 2008, Paragraph 11):

The first assessment of B’s means and expenditure (and consequently chargeability) took place in May 2008. As I indicate above, the starting point for any such exercise was the assessment of B’s eligible needs as reflected in his care plan. I was taken to a number of the Authority’s documents that purported to set out those needs. Two of these documents are headed “Care Plan”, namely those dated 4 February and 19 September 2008. Others are headed “Overview Assessment” (22 October 2007) or “Review Form” (19 February, 17 April and 30 October 2008). Although more or less full, each of these documents is in broadly similar form.

The October 2007 document is the most comprehensive, and certainly the longest (24 pages). It indicated that the maximum level of assistance that B required was one person, but that assistance was required for many everyday activities. “Problems/needs” were identified specifically in relation to level of social contact (in respect of which his family and creative workshops were identified as his two sources of relationships), family/carer relationships and level of carer support:

The same themes were picked up in the February 2008 document, headed “Care Plan”, although this is only 5 pages long. The importance of close contact with his family was indicated: and the need to “provide [B] with individual support to enable him to maintain his tenancy and engage in appropriate social and learning activities. The service must ensure that [B] has choices about his day to day lifestyle and support in making choices which are more difficult for him.” The timetable of care was monotonously regular Monday to Thursday. There are no detailed steps identified that it was proposed would be taken.

This document was reviewed at a meeting with Mr & Mrs B later in that same month. They again referred to their wish for B to have more access to outside activities (which was to be followed up by Ms Kate Curnow (B’s Senior Support Worker) who was going to “explore other avenues for activities…” She was also going to make an appointment with B’s doctor for an assessment, particularly into his apparent depression and the suggestion in his health file that he had manic tendencies for which he was on medication.

The April 2008 document was largely repetitive, except that it did refer to B being fit and well, and going swimming 1-3 times per week under the heading “Physical Well-being”. The plan in that regard was “meeting current needs”. That was the last review or plan before the two charging assessments in May and July/August 2008.

There were two further short reports in September 2008 (headed “Care Plan”) and October 2008 (“Care Plan Review”). The former stressed the need for B to maintain close contact with his family. It did not set out any particular steps it was proposed to take in relation to B. The latter was also short (3 page), and appears to be a review of the September plan - but Mr & Mrs B did not attend the review meeting. The document did not reveal the result of any meeting that might have taken place between Ms Curnow and B’s doctor: but it did state that “[Ms Curnow] feels that introduction of more/new activities would upset [B] and cause him to worry.”

The first assessment for charging purposes took place in May 2008, and was conducted by Ms Colliver. On 27 May, Ms Colliver met Mr and Mrs B, at their home, following a meeting Ms Colliver had with the B’s Senior Support Worker and the C Team Leader, Ms Kate Curnow. Such a meeting with the service user or his family carers is of course envisaged by the guidance referred to above. Mrs B takes up the story (First Statement, Paragraphs 15-17):

It was therefore clear to Mr & Mrs B following this meeting (if it had not been clear before) that the Authority were entitled to levy a charge for care services, and that, subject to an assessment of means and expenses, they proposed to levy a charge. In other words, Mr & Mrs B knew that the Authority did not intend to waive any charge which they could recover: they were aware that B would not be charged only if and only because the calculation of means and expenses led to a nil figure against which any charge could be levied.

However, the May assessment calculation did lead to a nil figure. The amount of net income against which a charge could be levied was calculated on the basis of total income less sums allowed against that income (including DRE). B’s only income has at all material times been from benefits, namely income support (including some disability premiums) and disability living allowance (both mobility and care components). Excluded from chargeable income are (i) the mobility component of disability living allowance, (ii) an amount equating to the income support received plus 25% and (iii) DRE. B’s income, and allowances (i) and (ii), are uncontentious. This claim only concerns the level of his DRE. Self-evidently - because it is a set-off against income - the higher the level of DRE, the lower the available amount that can be subject to a charge.

On the basis of information she already had (including, presumably, the relevant care plans including reviews and information she had obtained from her meeting with Ms Curnow), Ms Colliver provisionally calculated that B should contribute £18 per week towards the cost of his care. However, in line with the relevant guidance, at the May meeting she discussed other elements of expenditure that Mr & Mrs B thought should be included in the calculation, such as holiday-related costs. Following those discussions and still while she was with Mr & Mrs B, Ms Colliver recalculated the DRE figure as follows:

That meeting was held on 27 May. By 4 June, some of the charging assessments for the 180 people who (like B) were transferring across from the Trust to the Authority had been reviewed by the Financial Assessments and Benefits Team (Maria Harvey, who headed up the team from 1 April 2008, and Robin Stephenson). Before the end of May, Mr Stephenson had found that some of the assessments were inconsistent with the application of local guidance for DRE (Mr Stephenson Statement 11 February 2009, Paragraph 6): and a further review “confirmed that local guidance had been applied inconsistently in financial assessments for this group of service users” (Paragraph 7) - by which I understand him to mean that there had been inconsistent application of local guidance as between those service users already being provided for by the Authority and those who had become the Authority’s responsibility as the result of transfer. At the 4 June meeting:

The need for “transitional arrangements” was set out in an internal email from Ms Harvey to Nicholas Fripp (Head of Operational Transformation (Learning Difficulties) within DASC from 17 March 2008) dated 6 June 2008, which effectively reported on the 4 June meeting:

Therefore, by 4 June (about a week after B’s May assessment):

It was agreed that every assessment would be reviewed as a paper exercise - and a letter would go out to all service users affected informing them that there would be no contribution before October 2008, and that assessed charges would be communicated by the end of July 2008.

That letter was sent out on 30 June, in the following terms:

Mr & Mrs B say that they never received this letter. In any event, had they received it, they would not have been discomforted by it nor gained much from it. They had been seen by Ms Colliver at the end of May: they considered her to be competent in making financial assessments: and B’s contribution had been assessed at nil. In this letter there was nothing to suggest that that assessment was wrong - as the Authority considered it to be by this time - or that a fundamental review of the assessments was under way, or that the assessment might shortly change dramatically upwards. This letter was, at best, unhelpful: and at worst positively misleading as to the then current position. Had it been received, it would have done nothing to alert Mr & Mrs B as to what might be on the way.

In fact, the reviews took place over three days in mid-July, on a desk top basis - i.e. on the basis of the available documents, and without any further input from Mr & Mrs B. Although there had been the suggestion that they would take place with input from the Finance Officers who performed the original assessments, there appears to have been no input from Ms Colliver in the reassessment of B’s liability to charge (although there is no evidence before me from Ms Colliver herself, and this remains largely unexplained). Dr Armstrong for the Defendant submitted that, in May, Ms Colliver had before her no possible evidence upon which she could properly form the view that expenditure was DRE. I do not agree. For the May assessment, Ms Colliver had (i) the paper work, (ii) the benefit of a meeting with the C team leader, Ms Kate Curnow and (iii) a meeting with Mr & Mrs B. Those meetings were not minuted, but Mrs B gave evidence that they discussed other expenditure that, in the view of Mr & Mrs B, should properly be DRE (First Statement, Paragraph 15). The July reassessment appears to have taken place only on the basis of the documents, and without any input at all from the service user (B), his carers (Mr & Mrs B) or B’s Senior Support Worker and the Team Leader at C (Ms Curnow) save for her input into the documents such as the care plans and reviews.

The Authority realised that the reassessments would likely shock those who had not previously been charged (Mr Fripp Statement 11 February 2009, Paragraph 10). As Mr & Mrs B did not receive the 30 June letter, the letter of 8 August detailing the results of the reassessment indeed came as a complete shock. Although, for the reasons I have already given, receipt of the 30 June letter would not have alleviated that surprise much if at all. The letter was addressed to B, and sent to him at C. Mr & Mrs B criticised the Authority for not sending them the letter or a copy of it, as patently B would not be able to understand it - but that criticism is slightly harsh. B had the benefit of Support Workers to advise and help him, and the object of supported living is to enable people to do as much for themselves as they can with local support. Since they have been requested to do so, the Authority have sent Mr & Mrs B at least copies of similar correspondence in relation to B.

The 8 August letter was eventually sent to and received by Mr & Mrs B in late August. The letter read:

The letter did not contain a calculation of the new assessment, but Ms Harvey has confirmed (Statement 11 February 2009, Paragraph 14) that the following items were removed as DRE “either due to lack of evidence or they were not applicable as DREs”:

Ms Harvey explained that (Statement 11 February 2009, Paragraph 16):

The result of excluding those items was to reduce the figure for DRE from £98.15 to £23.88, with a resultant increase in the income available for charge. With minor adjustments (which are not relevant to this claim), the weekly charge rose consequently from nil on the basis of the May assessment to £68.50, albeit with transitional reductions to nil to October 2008 and to £30.00 to October 2009. It is that decision to make those charges that B seeks to challenge in these proceedings.

The challenge is made on three grounds.

In the Summary Grounds, this was the main ground of challenge, and put on the broad basis of “Breach of substantive legitimate expectation/error of fact/irrationality/irrelevant considerations”. It was based on the premise that, in giving B the May assessment, the Authority made a clear and unambiguous representation to B that it was accepting each and every head of DRE identified in that assessment and/or B would otherwise not be charged: he relied on that assessment: and the Authority could not “renege” on the earlier assessment as they sought to do in the August assessment.

This ground was rightly not pursued by Mr Coppel at the hearing before me. It is unarguable. Mr & Mrs B were aware from the 27 May meeting (if not before) that the Authority proposed to charge community care service users subject only to the calculation of the net income against which a charge could be made. The May assessment could not bind the Authority for all time: it was necessarily for a limited duration - and the Authority could not burdened with an inability to charge B for services if (as they now contend) the May assessment was simply flawed and wrong. A public body could not be so bound. Amongst other things, it would be unfair to other users. B (and his parents) may be disappointed by the change in assessment - and even the way in which the Authority have handled the issue - but there is no evidence of legal detriment which could possibly found a claim for legitimate expectation.

These grounds can sensibly be dealt with together, particularly as one way in which it is alleged that the Authority failed to follow the relevant guidance is in their failure to prepare a proper care assessment.

It may assist to start by reiterating the duties that lie upon the Authority in respect of someone like B with community care needs. The authority is required to (i) make an assessment of the person’s care needs, (ii) decide what (if any) services they will provide to fulfil any of those needs, and (iii) assess the service user’s ability to pay and what charge should be levied from the service user (if any) (see Paragraph 7 above). (i) and (ii) are obligations imposed on an authority by Section 47 of the 1990 Act. Although a written care plan may be regarded as potentially important in the process (and it may be difficult in practice to show that the duties have been complied with without an effective care plan), if an authority can show that it has complied with these duties, the form in which it does so is not relevant.

Although separated out into several strands for the purposes of argument, the thrust of Mr Coppel’s submissions was that, looked at as a whole, one could not be satisfied that the Authority had complied with its duties when they proceeded to assess B to a charge of £68.50 per week on 8 August 2008: indeed, he submitted that I could be well satisfied that it had breached its duties in arriving at that decision, and consequently the decision was unlawful.

Before I consider with the main strands of the submissions, let me clear the ground by dealing with two peripheral submissions which did not impress.

First, Mr Coppel submitted that, in direct contravention of Paragraph 80(xi) of the 2003 Guidance, the Authority did not consult service users (including B, or Mr & Mrs B) when they changed their charging policy between May and August 2008. That submission, in that form, is not to the issue - because there was no policy change between May and August 2008. That is precisely Dr Armstrong’s point: it was the same policy, but in May it was simply misapplied. No need for fresh consultation on the basis of a change of policy therefore arose. It is a different point as to whether there should have been consultation with (amongst others) B and his parents in that period because of the potential increase in charges: Paragraphs 98 and 99 of the 2003 Guidance stress the importance of consultation in the event of significant increases, described as “one of the main principles” (see Paragraph 13(ix) above). I return to that issue below.

Second, Mr Coppel suggested that, in describing DRE, the use of the phrase “essential expenditure for independent living” by the Authority in itself betrayed a misinterpretation of the appropriate requirement. However, I accept Dr Armstrong’s submission that, in essence, this wording was substantive the same as the wording used in the guidance: “expenditure needed for independent living”.

I now turn to the main strands of Mr Coppel’s submissions, which were as follows. I have abbreviated these submissions, and trust that I have done them justice.

First, Mr Coppel submitted that the various documents that purported to set out B’s care needs - whether headed “Care Plan” or not - neither adequately assessed those needs nor set out cogently what the Authority proposed to do to satisfy those needs that were eligible for their assistance. There was neither a clear statement of objectives in any of the documents, nor a comprehensive list of B’s care needs, nor a list of services to be provided in respect of those needs. The relevant guidance, such as “Care Management and Assessment - A Practitioner’s Guide” (see Paragraph 12 above), was not followed in their preparation. None of the care plan documents can give confidence that B’s care needs have been properly addressed. Furthermore, by August 2008, the relevant plan (February 2008) was 6 months old, and was just about to be superseded by the September and October documents. The whole assessment exercise is therefore built on an unsound foundation.

Second, he submitted that, contrary to the relevant guidance, the Authority failed to engage with B and his parents in coming to the assessment of charges. This was the particular issue highlighted by Blake J when he gave permission in this case. The Community Care Assessment Directions 2004 and the 2003 Guidance require that an authority engages with, and tries to agree with a service user and his carers, both the steps that the authority will take in relation to identified eligible needs and also in the assessment of charging for those steps. In this case, Mr Coppel submitted, there was no such engagement, let alone actual or attempted agreement. There was a limited paper exercise, without any input from B, his parents or the Senior Support Worker and C Team Leader (Ms Curnow), unlike the May exercise which had that additional input. The Authority erred in law in failing to engage as the Directions and guidance required.

Third, the Authority took a restrictive approach to the assessment exercise, which was again in breach of the guidance which requires both a purposive approach and that the self-assessment of the service user (which must include the assessment of his carers, such as his parents) to be taken into account.

In response, Dr Armstrong submitted the following.

First, that it could not be sensibly said that the Authority did not have sufficiently full a picture of B’s care needs when performing the assessment. Through the Brandon Trust, it had access to several people who had been working with B at C for many years. There were regular care plans and supporting documents. In any event, any failure was immaterial, because, after reviewing possibilities of further activities, Ms Curnow took the view on 30 October 2008 that any new or further activities would upset B and cause him to worry. In that review document, although Mr & Mrs B were not at the review meeting, it is reported that, “Both [Mr & Mrs B] and [Ms Curnow] feel that [C] meets [B’s] needs”: and Mr B is reported as having confirmed on the telephone that he was happy with the support provided for B (Carole Liesse Statement 11 February 2009, Paragraph 8). With regard to the suggestion that the plan was not up to date, (i) it was reviewed in February 2008, and (ii) the September 2008 document was not materially different from the February 2008 document, so any failure on the Authority’s part was again immaterial.

Second, Dr Armstrong accepted that there might have been a lack of sufficient engagement before the 8 August decision letter - but, he said, since then the Authority have made a number of offers to meet Mr & Mrs B and reconsider the assessment in the light of any new evidence they wished to put forward. Ms Harvey offered to go and see them to go through the assessment and see if there was any evidence for other expenditure to be included in DRE as early as 12 August 2008 (Maria Harvey Statement 11 February 2009, Paragraph 5). That offer was repeated in Mr Fripp’s letters of 11 September and 1 October 2008, and in the response to the pre-action protocol letter on 17 November 2008 (which makes abundantly clear that they were offering a full review of the charge assessment: see Paragraph 6.1). Therefore, any lack of engagement has been cured by these subsequent offers.

Third, Dr Armstrong denied that the Authority had adopted a restrictive approach, but also submitted that, even if they had, on the facts of this case that would be immaterial if regard was had to the actual expenses sought by B to be categorised as DRE. In the case of each item, there was no evidence that the expenditure had been incurred and was needed by B for independent living. It was purely an evidential issue: if evidence were produced, then the Authority would be pleased to recategorise expenditure as DRE.

One of the difficulties and unhappy features of this case is that the Authority had a duty to engage with (effectively) Mr & Mrs B, but, in relation to the charging issue, that engagement has never happened. Constructive engagement requires the good will and best efforts of all concerned. Mr Fripp said that he “wanted to make sure that prior to any introduction of charges people had the correct information and the opportunity to question their individual assessments” (Statement 11 February 2009, Paragraph 5). He singularly failed in his aspiration. In this case, the Authority failed to consult Mr & Mrs B over the increase in charges at all - or even be fully open with them as to why the May assessment was not properly conducted, and had to be redone. Then, when the Authority did offer to engage, Mr & Mrs B have refused to do so. Each of the parties have their reasons for these failings. The Authority say that, after the original May assessments, they had a management problem on their hands and they had to act quickly which could only be done by way of a desktop reassessment (although a lack or resources cannot excuse a failure properly to do what had been wrongly done in May, and this does not in any event explain their lack of communication to Mr & Mrs B). Mr & Mrs B say that they have lost faith in the Authority: and are not prepared to engage with them unless and until they are satisfied that the Authority will take a proper (and lawful) approach to the charges assessment. Be that as it may, it has meant an impasse, which has not benefited B, nor reflected well on the Authority or Mr & Mrs B. In saying that, I do not suggest for one moment that any party has other than the best interests of B at heart. It is clear that they do.

With that prelude, I now come to consider whether, in making their decision of 8 August 2008 to increase the charge for care services for B from nil to £68.50 (albeit with a transitional ramp), the Authority acted lawfully. I am quite satisfied that they did not.

First, in my judgment, the Authority acted unlawfully in failing to engage with Mr & Mrs B as they ought to have done, and as the Community Care Assessments Directions 2004 and 2003 Guidance in particular required them to do. As Ms Colliver at least apparently sought to do in May 2008, with Mr & Mrs B, they ought to have identified B’s needs and the actions that they proposed to take to alleviate those needs, and then considered the question of whether the costs of such steps were properly DRE. The May assessment form indicated that Ms Colliver (an experienced Senior Financial Officer, used to making such assessments) was satisfied that the expenses identified in the form were reasonable DRE and were expenses that had been or were going to be incurred. She came to that view with the benefit of having met both Ms Curnow and Mr & Mrs B, and discussed the relevant needs and steps with them. In July/August, the Authority were in breach of the relevant Directions and guidance in performing an assessment without engaging with Mr & Mrs B at all, particularly as the reassessment increased the charges considerably. In the light of the May assessment - and Ms Colliver’s views on what of B’s expenditure constituted DRE - that breach cannot be considered immaterial. To be fair to Dr Armstrong, he did not seek to defend this lack of engagement. His submission went to the steps the Authority took after the decision, which (he submitted) rescued them in terms of merits. The Authority quickly realised that they had not done enough to communicate with service users in relation to the charges, and they sent out a statement from Mr Fripp apologising and arranged a meeting to address concerns (see Mr Fripp Statement 11 February 2009, Paragraph 12). But those post-decision steps cannot make valid an unlawful decision. In any event, I do not accept that B has not suffered prejudice, for the reasons I give below.

Second, there is no doubt that the Authority’s approach to their decision of 8 August was, at least in part, defective. Although Dr Armstrong said that the Authority’s view now was that they merely required evidence that expenditure in each of the claimed categories was DRE and they would allow it, that was not their approach at the time. In his letter of 1 October 2008 to B’s solicitors, Mr Fripp said this of the holiday item:

Mr Fripp’s letter betrays a number of errors of approach. First, as the Authority accepted through their Counsel Dr Armstrong at the hearing before me, additional expenses of a holiday (such as those of an accompanying carer) which are all that B claims, may be DRE: and before me Dr Armstrong accepted that there was probably enough evidence in this case so to classify them Certainly it is not correct to say, as Mr Fripp did, that such expenses are incapable of being DRE, irrespective of the evidential basis. Second, the Authority’s guidance is only guidance. As I indicate above (Paragraphs 15-16), the Authority’s guidance before December 2008 had no reference to holidays: after November 2008, there was reference to one week and a maximum cost of £500. But each of these guides can be no more than that: they must be capable of being overridden if (for example) a service user has evidence, perhaps from a medical practitioner, that two weeks of holiday is necessary for a particular individual as needed for independent living. The discretion - and proper judgment - that lies in the Authority cannot be bound by the guidelines, as Mr Fripp suggests. Third, the indication that holidays can never be regarded as DRE at least heavily suggests that Mr Fripp’s approach to the parameters of “essential expenditure needed for independent living” is flawed - because on any proper view such expenditure must be capable of being DRE.

Third, I do not consider that the Authority’s approach to B’s care plans, in context, was lawful. Care plans cannot be viewed in isolation, as Mr Coppel invited me to do. They have to be viewed in the whole context of a case. That is what Sedley J referred to in Rixon (see Paragraph 12 above), and there are reflections of the same point in the judgment of Hallett LJ in (e.g. at Paragraph 72). Mr Coppel is of course right that, with the benefit of hindsight, the care plan documents could have been fuller. Indeed, they do not fully comply with the guidance in terms of content. Ms Harvey appears to have recognised that the relevant care plans needed work doing on them, before a full charges assessment could be made, e.g. (see her email to Mr Fripp of 6 June 2008 quoted at paragraph 36 above). The responsibility for doing that further work fell upon the Authority. Whilst I appreciate - and endorse - the comments of Hallett LJ about the caution with which adverse judgment should be passed upon a particular care plan (Ireneschild, Paragraph 71), in my judgment it was not open to the Authority in this case to refuse to accept expenditure as DRE on the basis that the required need was not evidenced in B’s care plan, whilst at the same time identifying defects in that plan and failing in their duty to consult Mr & Mrs B who may have been able to provide the evidence lacking in the care plan itself.

Fourth, it is for the Authority to assess eligible needs. That is their statutory duty under Section 47 of the 1990 Act. Of course, if requested to do so, a service user must provide evidence that DRE has actually been expended (by the provision of receipts, bills etc), and that is the specific reference to the provision of evidence in the 2003 Guidelines (see Paragraph 13(ix) above). Furthermore, it is right that the views of the service user and family carers are sought as to his needs and the steps the authority propose to take in respect of those needs. The relevant guidance requires that. The user may of course also be able to produce evidence of a particular need. But the authority cannot avoid its obligation to assess needs etc by failing to make an appropriate assessment themselves, in favour of simply requiring the service user himself to provide evidence of his needs. In this case, so far as the August assessment is concerned, I am afraid the Authority appears to have abrogated its obligation in that way. Ms Harvey appears to have accepted that the care plan fell short. In any event, I consider the Authority acted unlawfully by disallowing expenditure as DRE on the basis that B had failed to evidence the expenditure as DRE to their satisfaction whilst they gave B (effectively Mr & Mrs B) no opportunity to make good that perceived evidential deficit. In the Authority’s own guidance, it is suggested that, if evidence is not forthcoming, then the Finance Officer should ask for it to be produced at the next charges review. Whilst that appears to be concerned with evidence of expenditure (receipts, bills etc), there is no suggestion in that guidance that a failure to produce evidence should be fatal, and that no opportunity should be allowed to correct evidential deficits.

Fifth, even looking at the care plan documents alone - i.e. without the benefit of any input from Mrs & Mrs B, or Ms Curnow - I do not accept that there is no evidence supporting the relevant heads of expenditure as DRE. Homestay costs is the largest item (£32.31 per week). The Authority’s own guidance presupposes claims will be made by family carers (see Paragraphs 15-16 above). The care plan documents are replete with indications that B’s family is important to him with regard to relationships: and also that he needs 24 hour support (for example, in the October 2007 document, see Paragraph 26 above: and the February 2008 Care Plan makes clear that: “Other than when he needs medical treatment [B] needs a support worker with him”). There is evidence that the money payments are indeed made to Mr & Mrs B. Whilst I appreciate that weight of evidence is for the Authority as decision maker, it is not right to say there is no evidence in support of this item in the care plan documents: and they have not indicated why this evidence is inadequate and what further evidence they require before accepting this item as DRE. That is why engagement with Mr & Mrs B, required by the guidance, is so important.

I accept that the evidence in the care plan documents in relation to some of the other items is not as strong. However, for example, in the April 2008 document, there is reference to his swimming 1-3 times per week, under the heading “Details of changes/progress” in relation to his physical well-being. Whilst there does not seem to be any written evidence from medical practitioners about the benefits of reflexology and aromatherapy, one does not know what evidence Mr & Mrs B or Ms Curnow may be able to give, particularly if as presaged in the care plan documents Ms Curnow has seen B’s medical practitioner about his depression. These are enquiries the Authority ought to have made before making their August 2008 assessment.

For these reasons, I find that the charging decision in the letter of 8 August 2008 was unlawful.

That takes me on to appropriate relief.

I will certainly hear submissions in relation to relief, if and when appropriate, and in relation to directions in the meantime. However, the most important and urgent thing is for a proper charging assessment to be made by the Authority in relation to B, on the basis of the legal guidance contained in this judgment. That should not be difficult for them, because during the course of these proceedings, they appear to have recognised at least some of their deficiencies in making the August assessment. They will need to engage properly with Mr & Mrs B, who will, I am confident, cooperate with the Authority in the exercise. If necessary, I can give directions to ensure that that engagement is productive. However, I understand that meetings have already been arranged between Mr & Mrs B and the Authority. In the circumstances, subject to any further submissions, I would propose to stay this claim until 1 May 2009 with permission to apply, to allow those discussions to proceed. I reserve any further application in relation to this matter to me.