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

This is an application by the claimant, by his mother and litigation friend, for judicial review of a decision of the defendant council made on 29 March of last year. That decision related to the review of a policy for providing respite care styled Fair Access to Short Breaks to Carers (“FASBC”), that policy itself having been the subject of earlier proceedings resulting in a consent order concerning its review (“the FASBC review”).

One of the issues in the earlier proceedings was whether or not the defendant had proceeded in a misconceived or unlawful way in providing respite care as a service to carers rather than disabled people. The distinction is potentially important because carers’ services are essentially discretionary, whereas, as was common ground before me, care services (residential or day) provided to disabled people occasioned by the need for respite are provided not pursuant to any discretion but under a statutory duty owed to disabled people as service users.

During the earlier proceedings, the FASBC policy was suspended by the defendant’s cabinet in June 2009 and the decision was made in November 2009 to review the policy due to amongst other things the legal action which had been taken.

The review process was ultimately embodied in the consent order I have referred to, though it started earlier. The consent order was made in March 2010 between the same claimant before me and the defendant council. It seems to bear the seal both of 4 March and 8 March, whereas in fact the terms of the consent order were agreed previously in January I do not think anything really turns on that except to explain why things had been happening in January pursuant to the apparent terms of the consent order, because at the time the order was entered its terms were being implemented. In fact, the review started even before the agreement in January, as a result of the defendant council’s earlier decision to review the FASBC policy.

There was annexed to the consent order terms of reference, which stated as follows:

It is necessary to say something about the RAS. This was a scheme that was introduced earlier in June 2008 and came to run in parallel with the FASBC policy. Essentially, and I oversimplify it (the matter being developed fully in the evidence) those requiring care services from the defendant council filled in a self-assessment questionnaire as part of a five-stage process for assessment. Their needs were then considered according to the answers given, which produced a number of points which were then allocated a monetary value which gave rise to an individual indicative budget. This budget was then considered by a social worker against a support plan with the potential for moderation of the budget upwards or downwards. The support plan and budget once established were then followed by regular reviews to deal with changing needs.

The answers given in the self-assessment questionnaire were effectively fed into a mathematical model which produced the provisional individual budget, which the service user was then expected to receive from the defendant council and spend in providing the services that he or she required. This contrasted with the previous system of receiving services at the council's direct expense in accordance with assessed needs as determined by a social worker. The social worker was of course and remains an important element of the assessment process, including the consideration of the support plan and moderation of the indicative budget upwards or downwards. The change of emphasis towards encouraging service users to use individual budgets following self-assessment is encouraged by the Department of Health as part of what is described as the “national personalisation agenda”.

It has been clear since at least June 2009 that the ability for the budget to be adjusted upwards or downwards is built into the system. It was that system that the council wished to adapt for the purpose of dealing with the suspended FASBC scheme and its replacement. A leaflet issued by the defendant council in June 2009 pointed out, under the heading “How much money will I receive?”, amongst other things as follows:

Staff guidance issued at the same time reiterated that point and made it plain that finalising the individual budget was something which took place when completing the support plan, a stage which followed the ascertainment of the individual budget. The staff guidance emphasised that the budget should not be lowered on the basis of using a service user's minimum care support package but that the final individual budget might well be less if assessed needs and outcomes were being otherwise met. More importantly, perhaps, the staff guidance provided that the social worker should see, in the event that the cost of support was higher than the estimated individual budget, whether there were any more cost effective ways to provide support to meet assessed needs and revise the support plan accordingly, but that if alternatives having been looked at, including other formal and informal alternatives, and there were no more cost effective way to meet the needs, the budget would need to go to a manager to be moderated using a moderation form. One such form was in Appendix C to that guidance, which provided for a moderation decision to be specified with accompanying justifying reasoning.

The terms of reference for the FASBC review also mentioned the Revised Fair Access to Care Services guidance. This was statutory guidance issued by the Department of Health, originally in 2003, and revised in February 2010. It was not disputed before me that the defendant should act in accordance with this guidance unless there is good reason not to do so. This guidance emphasised the importance of appropriate assessment by identifying and evaluating an individual’s presenting needs. Under its revision, the importance of the national personalisation agenda was also noted. It was made clear that self-assessment did not negate the duty of the council to carry out its own assessment. It was also stated that a RAS should be transparent, linking money to outcomes.

The FASBC scheme had proved unpopular with the claimant and others in a similar position, because it reduced what had hitherto been consistent provision of (in the claimant’s case) 92 days’ respite care to 42 days, which seemed alarming, with no apparent mechanism for upwards adjustment. The RAS as just described was more flexible when coming to fix individual budgets though, even in the case of the RAS, once the indicative budget is established, some justification has to be advanced for departing from it. What the staff guidance and the explanatory leaflet both recognised, however, was that a critical element of the assessment process was the compiling of the support plan, which was necessary in order for the council to carry out its statutory duties properly to assess people such as the claimant in this case. The compilation of support plans is undertaken in many cases by social workers in conjunction with service users. Even when compiled by the service user alone (which is a possible course) the support plan is considered by a social worker in the context of the user’s presenting needs. Needs assessment thus remains an integral part of the process.

As this case is a challenge to the defendant council’s policy and not its application to specific cases, the individual circumstances of the particular claimant are not especially relevant, though it is only right to record that his circumstances and the circumstances of others waiting in the wings pending the outcome of this decision are harrowing to say the least and necessarily engage the sympathies of the court.

It is clear from the terms of the consent order that I have read that what the defendant council had in mind was adapting the RAS to bring respite care within it. There was no provision in the consent order requiring a consultation on any particular aspect of the review, but there was a specific obligation on the defendant council’s part to provide the report itself to the claimant within 14 days of conclusion of the review and to answer fully any questions within 14 days of the questions being submitted. There was also an obligation to notify the claimant in writing of the defendant council’s decision on the future of the policy and any relevant amended or new policy on the provision of respite care together with reasons. In the meantime the claimant's respite care of a minimum of 92 nights a year was preserved pending any lawful alteration of the policy. The obligations to provide the report, to notify the decision and to answer questions have been complied with (though not without some complaints, no longer extant, from the claimant) and the existing level of respite care has been maintained pending this decision.

The defendant council chose to carry out public consultations in relation to the FASBC review. It was not under any obligation to do so and, subject to limitations of rationality, the extent of the consultation process was a matter for it. The consultations took place before the consent order was made. There was an early meeting on 2^nd September 2009 at which complaints of the FASBC scheme were voiced. Public consultation meetings took place on six separate occasions over three days at the beginning of December 2009. Post-consultation meetings and on-line consultation continued through to February  2010. The terms of reference attached to the consent order recognised that the formal review “will commence in October 2009, data gathering phase due for completion in early January 2010, with a final report to Cabinet scheduled for 8^th March 2010”. These dates substantially pre-dated the making of the consent order, which was still being negotiated during the review process. The recitals to the consent order recorded that the defendant council had agreed to carry out the FASBC review.

The Full Review Report was supplied to the claimant's solicitors on 9^th March 2010 in accordance with the consent order.

The purpose of the Report was said in its introduction to be “to consider lessons learned from the FASBC scheme with a view to maintaining positives and addressing negatives within the context of the new social care model of personalisation. The methodology involved:

The Report elsewhere explained that the FASBC review was based on three considerations: the need to ensure that support to carers be set within the context of the national personalisation agenda; that preliminary meetings were held with representative carers to establish their likes and dislikes of FASBC and include their requirements into the new model; and that formal and comprehensive terms of reference for the review were agreed between the council and the carers.

This was therefore on the face of it a review of the full extent of the replacement of FASBC by something else. That something else was first to be identified as a “consultation proposal”. That became the RAS model, into which respite care (and carers’ needs generally) were to be incorporated. It was that proposal which became the subject matter of the consultation.

The degree of consultation was set out within the Report itself and the main consultation events were specified in paragraph 3.5.

It is clear to my mind that the consultation constituency as set out in the Report was as extensive as it needed to be. The issue before me is whether and to what extent the consultation process was blinkered because of the defendant council’s perception that what essentially they were consulting upon was the sufficiency of the process by which respite provision could be brought within the RAS model or, as it was put in the Report’s introduction, “the new social care model of personalisation”.

The council perceived the consultation process as essentially focussing upon the means of access to the RAS model so as to cater for respite needs and the needs of carers. This is not especially surprising or shocking because that model itself had been developed over time in accordance with central Government guidelines. Moreover, the self-assessment questionnaire existed for service users and the object was to develop a joint assessment process. The principle of RAS did not need a new consultation process of its own, nor did the principle of a self-assessment questionnaire. Mr Wise QC for the claimant was at pains to emphasise that this case is not about the lawfulness of the original decision to adopt the RAS. Moroever, as the Report noted, FASBC also had originally been conceived in 2004, and launched in 2008, having been designed to introduce a fair and equitable way of allocating short breaks to carers. As it happens, that scheme had flaws of its own which led to its challenge and suspension, but that takes nothing away from the extensive thinking that had gone into the realisation on the council’s part that there were inequalities in the care system which needed addressing.

The FASBC scheme having been suspended the aim, as reported in paragraph 3 under “Context for change”, was to build carers’ assessments and care planning into the transformation model. With that aim in mind, the focus of the consultation meetings was amendments to the self-assessment questionnaire so as to concentrate more on carers' needs and the consequential needs of service users for respite care. Although it is now accepted that respite care is provided as a service to users, its effect also is to provide respite to carers, and is largely occasioned by the carers’ needs for respite, which necessarily impact on the care needs of the service user. Many would automatically assume, as the defendant council appears to have done at least initially in this case, that the whole point of respite care was to deal with the needs of carers for respite. However, it is now accepted that this is only one part of the equation. Respite care also provides service users with an improved quality of life by the provision of an alternative to the pressures, humdrum and repetitiveness of daily life. The fact that there is this overlap does not alter the fact that the primary reason for respite care is that the carer is unable or cannot reasonably be expected to provide all the care that the service user needs. In many though not all respects the interests of the carer and service user are the same. That being so, it is not surprising to find that carers’ needs were the primary focus of attention in the alterations to the questionnaire. It does not follow from this that the defendant council was treating the service as one provided to carers. Respite care was recognised as being provided to the service user. Mr Wise QC demonstrated the fact that during the consultation the interests of carers and service users were often equated, and the greater emphasis was given to identifying carers’ needs, thus giving the impression that the service was provided to the carer, not the service user. That conclusion does not seem to me to be justified, but reflects the reality of the situation. Moreover, it seems to me, that the consultation exercise was in many respects naturally directed towards eliciting the responses of the carer, as the carer is, especially in the case of the more severely disabled, better able to communicate the needs of the service user as well as his or her own. Moreover, carers’ needs are, independently of the needs of the cared for, potentially substantial, and the council owes legal obligations to address them as well.

The real issue in this case is whether or not the defendant council was justified in treating the consultation process which they undertook as being limited to, and I use this as shorthand, processes and accessibility to the system rather than outcomes. Inevitably and naturally, those who attended the consultation meetings raised questions as to how it would affect them and how the process would in practice translate into money. It was natural to ask that question, but it was equally understandable that the defendant council should be unwilling to go into that sort of detail, which would have to await proper assessments (which were not displaced by the RAS) in the context of individual cases.

It is of course well established (and was not disputed before me) that if there is to be a consultation process even where there is no legal obligation to consult, there must be a proper and vigorous consultation. I was particularly referred to amongst other cases R (Eisai Limited) and the National Institute for Health and Physical Excellence [2008] 101 BMLR 26, a decision of the Court of Appeal, where the failure in a consultation process to make available what was described as an executable model which was critical to the evaluation process invalidated the consultation process in question.

Similar analogies with that case were drawn in the present case because the defendant council did not see its role as consulting on outcomes rather than adapting the process. The details of the arithmetical model which had been and was to be used for the allocation of points in response to the submission of the now revised self-assessment questionnaire were not provided during the consultation process. If the consultation process was a consultation on the principle of the RAS, or the financial outcomes to be achieved, I can see a powerful argument that the mathematical model should on the face of it have been provided, as in the Eisai case.

However, here the council was dealing with a RAS which had been introduced previously. The principle of a RAS was not up for consultation. What was being consulted upon was how the existing RAS could be adapted to embody within it respite care. It does not seem to me that it can be said that the council was irrational or in any other way acting improperly in limiting its consultation process in that way. To hold otherwise would be to ignore the significant consideration that had gone into the adoption of the RAS in the first place.

Serious criticism was also levelled at the failure properly to adjust the mathematical model to take into account the further demands that were now to be made on the system by bringing respite care within it. Reliance was placed upon the fact, as emerged relatively late in the day, that the model incorporated within it only one example of respite care (itself said to be flawed as the example was derived from the now discredited FASBC scheme) and only limited examples of persons under learning disabilities. I do not think that makes any difference in the circumstances of this case. It is accepted by the defendant council hat the operation of the system needs to be reviewed in the light of experience. At the time of the hearing before me a further consultation process and equality impact assessment were proposed. That was not a posture adopted in response to litigation; it is something that is reflected in Cabinet Reports. The defendant council sees the development of this new model, embracing as it does the whole range of care services which it has responsibility for, as being an ongoing process. If, therefore, the model should prove deficient, that ongoing process should lead to correction.

Moreover when it comes to individual assessments, which, at least so far as this claimant and others sharing the services of the same solicitors are concerned, have yet to take place, the moderation process will come into play. The moderation process is there because the City Council recognises that whatever the mathematical result of the process, individual needs still have to be assessed and catered for, though they contend, rightly in my judgment, that economic factors are relevant not just to meeting that need but in considering the extent to which the need is established. That seems to me to follow from R v Gloucestershire County Council ex parte Barry [1997] AC 584.

Accordingly, it does not seem to me that it is appropriate to condemn the whole scheme. The applicant (and others in a similar position) should see how it applies in practice, and (if appropriate to do so) make challenges in individual cases if the council subsequently fails in its statutory duties. There is a vital distinction between this scheme and the previous FASBC scheme: I have not been directed towards any power of moderation in relation to the earlier scheme. It is said that the particular power of moderation in the RAS scheme (and the scheme generally) lacks transparency. I do not agree. One cannot know in practice how the scheme will work until one tries it out, but the moderation process is part of it and is transparent enough. The moderation aspect did not feature in the consultation process, but that is because that was not was the consultation process was about. The moderation process already existed and no alteration was proposed. The consultation process was about how to bring respite care within the existing RAS system if that could be achieved. It was not, as I said, about outcomes rather than alterations to the process. Therefore the lack of consultation on that point seems to me to be irrelevant.

It is I can understand from the claimant's perspective a matter of concern that the mathematical model did not apparently undergo any proper adjustment to cater for the fact that respite care was being brought within it. Whether and to what extent such adjustment is needed should be borne out in practice, assuming the RAS is fairly applied. The defendant council is committed to review the operation of the system and to carry out further consultations in that connection. If experience demonstrates the need for revision, the necessary adjustment will have to be made. In the meantime there is the safety valve of the moderation process. No doubt had there been no such process then the application of a mathematical formula, leading to arbitrary discounts depending on the answers to broad-brush questions in the questionnaire, could be criticised, but there is a moderation process, which seems to me to be as important a stage as the initial evaluation of the indicative budget.

The indicative budget is no more than a starting point in the assessment process. If that budget in individual cases turns out to be inadequate, that is not enough to make the process, still less the policy producing it, unfair or unlawful: see R (Rafael Savva) v Royal Borough of Kensington and Chelsea [2010] EWHC 414 Admin, a decision subsequently affirmed by the Court of Appeal  [2010] EWCA Civ 1209. As that case also establishes, the council will, if asked, have to give a proper breakdown of the final budget, thus ensuring transparency and the ability to launch an effective challenge, where appropriate.

It is said in this case that the council has acted irrationally in distancing decisions on service provision from a proper assessment of a service user’s needs. The scheme does not (it is said) reveal any means of deciding how much residential respite is needed. I do not agree with this criticism. The need to assess an individual’s needs will remain notwithstanding the evaluation of the indicative budget. If the budget is inadequate for the purpose, the moderation process should be invoked by the social worker responsible for any given case.

It seems to me also that the proper recognition of the limited ambit of the consultation process answers the further complaint of disability discrimination. I am satisfied, on the evidence, that the council is acutely aware of its duties towards (and has had due regard to the impact of its policy on) disabled people, including the duties under section 49A of the Disability Discrimination Act 1995. Fulfilment of those duties requires rigorous open-minded consideration of the needs of disabled people, including different groups of disabled people, when the relevant decision is taken.

There is no doubt that in the adoption of the RAS model generally and in the monitoring of its application and the proposed review, the defendant council has done far more than merely pay lip service to its duties, including its duties to discriminate positively in favour of those who suffer disabilities and to have regard to different classes of disabilities. We see that from a very early stage because on the evidence a main reason for bringing in the combination, albeit at different times, of FASBC and the RAS scheme was to even out any inequalities that had been perceived by the defendant council as to the way some groups were treated, for no good reason, more favourably than others. It is for the council to make that judgment, and not for the court to be over-ready to substitute its own views. It is, as I have said always possible to look at any system and find defects in it but as was pointed out to me by reference to the decision in the House of Lords in R(Ahmad) v LB Newham [2009] PTSR 632, that is true in other areas as well. In that case Lord Scott in dealing with a housing policy relating to the priority allocations observed at paragraph 5 :

“No matter how many priority sub-bands were to be formulated, and the formulations would be far from easy and likely to be contentious, there must always be some basis on which to distinguish between those within the same sub-band who are in competition for the same dwelling.”

On that footing a waiting time criteria was confirmed as a justifiable and lawful basis of selection. He pointed out also in paragraph 7:

Here too, although the context is very different, it must be borne in mind that the defendant council’s responsibilities across the care field generally require a system which fulfils a myriad of duties and which strikes a fair balance in meeting the competing demands of all those duties.

In those circumstances, whilst the points that have been raised before me were all fairly arguable and therefore justify, as I indicated in argument and now confirm, the grant of permission to bring judicial review proceedings, ultimately the proceedings do not succeed and are accordingly dismissed.

I will just say, and this is not part of the judgment, but I would like to apologise because I think I told the parties that I had a target of two weeks to produce this judgment. Unfortunately because we have not had a third Chancery judge until quite recently, the other commitments on my time have been rather pressing. I also probably explained I was going to go into hospital for an operation on my hands (which affected my typing capacity) and I am afraid I had to call that off as well because of the other demands on my time so I am now going to do that in February.