Collective agreements

July 30th, 2012 by James Goudie KC in Decision making and Contracts

In Anderson v London Fire & Emergency Planning Authority, UKEAT/0505/ 11/SM, the EAT considered whether a term in a Collective Agreement with respect to the third year of a three year pay deal was apt to be incorporated in the contracts of employment of the Authority’s employees, and, if so, how that term should be interpreted. The Authority’s Collective Agreement with the Trade Unions gave the employer two options for the pay increase in the third year. It did not state which took precedence. The EAT held that the term had been incorporated.

The term was not insufficiently certain, either because it provided for a pay increase to be determined partly by reference to a sum to be agreed between third parties, or because it provided for the paying party to choose between two alternative methods of calculation.

The EAT however upheld the ET’s dismissal of the employees’ claims. The ET did not err in holding that the subjective intentions of the parties to the Collective Agreement were irrelevant when considering its interpretation. Nor did they err in having regard to the wording of the Collective Agreement rather than the negotiations which led up to it, even if paying the higher of the two options had been discussed. Nor was it material that the Union negotiator told the ET that he would not have agreed that management could choose the pay increase option which was most advantageous for them.

The EAT regarded the meaning of the relevant provision of the Collective Agreement as being clear. “Or” meant what it said. The Authority fulfilled their contractual obligation by paying in accordance with one alternative. The Authority was not obliged to pay whichever alternative would give the higher increase.

 

Highways

July 23rd, 2012 by James Goudie KC in Environment, Highways and Leisure

WHAT IS A HIGHWAY?

In Kotegaonker v SoS for Environment etc and Bury MBC [2012] EWHC 1976 (Admin) Hickinbottom J held that a footpath linking two privately-owned sites, one containing a health centre and the other containing shops, could not be a public highway, either at common law or under the Highways Act 1980 s.31, because members of the public had no legal right of entry at either end of the path.  They entered the health centre and the shops under licence from the respective landowners, not because they had an unrestricted right to do so.  There was no statutory definition of the word “highway”.  Common law did not have any authority directly on the issue.  As a matter of principle, the concept of a highway that was unconnected to any other highway was incongruous, because such a way did not have all the requisite essential characteristics of a highway.  Passing along a route as licensee did not constitute passing along it “freely and at … will”, since passage was at the will of the landowner, who could withdraw the licence at any time.  The fact that the owners of the health centre and the shops at either end of the path had never imposed any restrictions was irrelevant to the terms of s.31, which required that the right of way had to be enjoyed by the public “as of right”.

PSED

Yet another first instance decision on the PSED: R (Hunt) v North Somerset Council [2012] EWHC 1928 (Admin).  Applying the approach of the Court of Appeal in the Brent Libraries case, [2012] LGR 530, Wyn Williams J dismissed a judicial review challenge to North Somerset Council’s decision to approve, during its budget-setting process, a proposal to reduce financial provision for youth services and to review the ways in which such provision was made in its area.  The Judge held that the Council had complied in substance with its duties under s.149 of the Equality Act 2010 and s.507B of the Education Act 1996.

 

Yes, Cost can be taken into Account

July 18th, 2012 by James Goudie KC in Decision making and Contracts

In Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34 the Council, in its capacity as Local Planning Authority, granted planning permission for four blocks of student accommodation in proximity to a site used for storage of liquefied petroleum gas. Three of the blocks had been completed.  Work on the fourth had not commenced. Concerned that the storage facility constituted a danger to human life, the HSE applied for an order to revoke or modify the planning permission under s97 of the Town and Country Planning Act 1990.  In refusing the application, the Council took into account its liability to pay compensation under s107 of the Act were it to revoke planning permission in respect of all four blocks, but it did not consider whether the application should be granted only in respect of the fourth block.  The HSE brought judicial review proceedings challenging, among other things, the Council’s decision not to revoke or modify the planning permission.  The Court of Appeal held by a majority that a decision under s97 of the Act was to be taken not in isolation but within the statutory framework of the Act which imposed a liability to pay compensation if an order was made under the section. Accordingly, the Council, when reconsidering the matter, would be entitled to take into account its liability to pay compensation under s107 of the Act.

The HSE appealed to the Supreme Court against this part of the decision of the Court of Appeal: the issue being whether it is always open to a LPA, in considering under s97 of the Act whether it appears to be expedient to revoke or modify a permission to develop land, to have regard to the compensation that it would or might have to pay under s107.

The SC unanimously dismissed the HSE’s appeal. Lord Carnwath said that, in simple terms, the question is whether a public authority, when deciding whether to exercise a discretionary power to achieve a public objective, is entitled to take into account the cost to the public of so doing. As custodian of public funds, the authority not only may, but generally must, have regard to the cost to the public of its actions, at least to the extent of considering in any case whether the cost is proportionate to the aim to be achieved, and taking account of any more economic ways of achieving the same objective.

The SC held that s97 of the Act requires no different approach. The section requires the authority to satisfy itself that revocation is “expedient”, and in so doing to have regard to the development plan and other “material considerations”.  The word “expedient” implies no more than that the action should be appropriate in all the circumstances. Where one of those circumstances is a potential liability for compensation, it is hard to see why it should be excluded. “Material” in ordinary language is the same as “relevant”. Where the exercise of the power, in the manner envisaged by the statute, will have both planning and financial consequences, there is no obvious reason to treat either as irrelevant.

Under s97, a planning authority has a discretion whether to act, and, if so, how. If it does decide to act, it must bear the financial consequences. S97 creates a specific statutory power to buy back a permission previously granted. Cost, or value for money, is naturally relevant to the purchaser’s consideration.

Sufficient consistency is given to the expression “material considerations” if it is treated as it is elsewhere in administrative law: that is, as meaning considerations material (or relevant) to the exercise of the particular power, in its statutory context and for the purposes for which it was granted. Furthermore, in exercising its choice not to act under s97, or in choosing between that and other means of achieving its planning objective, the authority is to be guided by what is “expedient”. No principle of consistency requires that process to be confined to planning considerations, or to exclude cost.  Possible difficulty in assessing precisely the likely level of compensation is no reason for not conducting the exercise, still less for leaving cost considerations out of account altogether.

However, the weight attributable to cost considerations will vary with the context.  There may be situations where cost could rarely be a valid reason for doing nothing, but could well be relevant to the choice between effective alternatives.

 

 

Public Procurement

July 16th, 2012 by Site Default in Social Care

Re. David Connolly’s Application for Judicial Review [2012] NICA 18 (12 June 2012):

1.     The Northern Ireland Court of Appeal held that a shareholder and director of a disappointed tenderer cannot use judicial review to have a ‘second-bite’ at challenging a procurement process where the tendering company has previously litigated a claim under the Public Contracts Regulations 2006 (“the Regulations”) in respect of the same procurement.

2.     In 2010, the Department of Regional Development (“DRR”) awarded Traffic Signs and Equipment Limited (“TS”) two (out of a total of twenty one) contracts for the supply of traffic signs. TS was dissatisfied and brought proceedings under the Regulations.

3.     The Court held that if the procurement award criteria had been properly applied TS would have been awarded three further contracts. Accordingly, DRR’s decision in respect of those three contracts was set aside. However, TS’s challenge to the award of the remaining 15 contracts was rejected.

4.     Mr Connolly was a shareholder and director of TS. Rather than TS appealing the decision under the Regulations, Mr Connolly tried to bring judicial review proceedings in respect of the award of the remaining 15 contracts.

5.     The Court held that Mr Connolly was not entitled to pursue a remedy via judicial review.

6.     If TS was dissatisfied with the Court’s decision in respect of its claim under the Regulations it should have appealed. It had not done so: [26]

7.     The substance of the issues that Mr Connolly wished to raise under judicial review was effectively identical to the subject-matter of TS’s claim under the Regulations. Res judicata and the doctrine of former recovery prevented the re-litigation of the same issues: [26]

8.     While the English Court of Appeal’s judgment in Chandler tentatively supported the view that a third party with sufficient interest could seek judicial review for breach of the Regulations, there was ‘considerable force’ in the argument that no such remedy should be available to an economic operator that had a statutory remedy under the Regulations: [28]

9.     Mr Connolly’s only interest in the proceedings, as a shareholder and director of TS, was not a sufficient interest to maintain an application for judicial review: [29]

Comment

10.  It would be surprising if an economic operator could have a second-bite at the cherry, by re-litigating a failed procurement challenge under the Regulations via judicial review, simply by having a shareholder (or some other connected party) issue the judicial review application in his or her own name.

11.  The judgment highlights that there remains scope for doubt about the two obiter dicta statements in Chandler to the effect that: (i) non-compliance with the Regulations is a true ‘public law wrong’ that in principle should be susceptible to judicial review; and (ii) third parties should have a remedy in judicial review for such breaches, despite the fact that in enacting the Regulations Parliament has prescribed that only economic operators should be granted a right of challenge.

Shetland Line (1984) Limited v Scottish Ministers [2012] CSOH 99 (29 May 2012)

12.  The Scottish Court of Session allowed an application to lift an automatic stay, holding that the grounds of challenge were weak and the balance of convenience favoured allowing the contracting authority to enter into the proposed contract.

13.  Shetland Line (“SL”) advanced two grounds of challenge against the Scottish Ministers’ decision to award a contract for ferry services in the north of Scotland to a rival operator, Serco, following a competitive dialogue process. The proceedings arose from the Scottish Ministers’ application to lift the automatic stay.

14.  SL brought two grounds of challenge.

15.  First, that the ITT breached the Regulations and general Treaty principles by failing to prescribe what level of ferry service, and thus resources, tenderers would be required to provide under the contract. This lead to Serco winning the procurement with a proposal that provided a significantly lower level of service coverage than that proposed by SL, at considerably lower cost.

16.  The ITT stated that proposals must be able to meet ‘anticipated future demand’. That interfere with sperm production, which means that is viagra viagra online canada generic yet it must be treated. Houston, texas alsay how to use tadalafil research peptides recently hosted. That what does generic cialis look like changed ed so nicely, that a. It included historical data about usage, but did not prescribe any minimum level of expected future service. Bidders were therefore required to form their own view about what level of service would be necessary in future.

17.  SL asserted that the level of service postulated in Serco’s bid would not be sufficient to meet the level of freight needs described in the ITT. The Scottish Ministers were therefore said to have breached the Regulations by accepting a non-compliant bid. Relatively extensive witness evidence was advanced in support of the assertion that the solution proposed by Serco would not prove sufficient.

18.  Second, for similar reasons, it was claimed that the ITT breached the requirement to specify the contract requirements against which bids would be assessed with sufficient objectivity and precision. It was said that the approach adopted effectively left it open to bidders to define the service that would be provided.

19.  These alleged breaches were said to have prevented equal competition and thus breached the obligations of transparency, equality of treatment and non-discrimination.

20.  The Court rejected both grounds.

21.  The appropriate standard of review to a challenge of this sort was manifest error. The Judge held that it would be “quite wrong for it to trespass on the jurisdiction clearly given to the contracting authority to exercise a broad discretionary judgment as to the identification of the most economically advantageous bid”: [26]

22.  One of the main factual grounds of the challenge was incorrect, in that Serco did provide a standby vessel to cover the risk of breakdown or accident. This undermined the assertion that its proposal was insufficient to meet the contracting authority’s needs: [27]

23.  It was (or should have been) obvious to all bidders from the ITT that: (i) there was no absolute requirement as to the details of the service to be provided, and (ii) it was up to each bidder to frame their proposal using their expertise and experience, in the context that the emphasis would be on efficiency rather than maximisation of freight capacity: [28]

24.  Demand is not static and is subject to multiple variables, including the effect of competition. It was thus difficult to claim a priori that the successful bid would not be sufficient to satisfy such demand as might exist in future: [29]

25.  The requirement that proposals met “current and anticipated demand” was sufficiently precise to allow the bidders to determine the subject matter of the contract and the authority to award it. There was nothing objectionable in asking bidders to identify the appropriate number of vessels, schedules, capacity, etc. and allowing the contracting authority to assess them and select the most economically advantageous tender. The whole purpose of the competitive dialogue procedure is to cater for circumstances where it is not appropriate for the contracting authority to be specific about the technical means necessary to satisfy its needs or objectives: [30]

26.  It would be surprising if compliance with the competitive dialogue procedure required the kind of detailed specification asserted by SL. This was particularly so where there could be no certainty about the future demand for freight capacity and freight sailings which any new operator would experience: [32]

27.  There was no requirement for the Scottish Ministers to be more specific in describing the contract requirements. This was because of: (i) the uncertainties and complexity of the contact; (ii) the scope for imaginative and individual proposals; and (iii) the indefinite nature of the content of the most economically advantageous tender.

28.  Competitive dialogue under the Regulations did not deprive the contracting authority of the option of leaving the bidder to assess exactly what should be offered, price it, and then await the evaluation of the contracting authority. If this were not so, contracting authorities would lose the potential of the full benefit of competition between expert bidders, all operating on an equal footing in terms of information and dialogue: [34]

29.  At best, the Claimant therefore had a weak prima facie case: [34]

30.  The balance of convenience, including the public interest and private interests of Serco, favoured lifting the stay: [35]-[39]

Comment

31.  This decision will be welcomed by contracting authorities as affirming the generous margin of flexibility and discretion that is enjoyed under the competitive dialogue procedure. Despite bidders having widely differing interpretations of what the ITT required them to provide, the Court’s view was that the Scottish Ministers were entitled to require parties to make their own projections about future service needs and then decide the winner based on which estimate it regarded as most realistic/advantageous. This was the case notwithstanding the fact that this approach necessarily meant that in one important sense the comparison of bids was not conducted on a ‘like for like’ basis.

32.  It is unlikely that a contracting authority would be permitted to adopt such a relaxed approach to defining contract specifications under the other procedures provided by the Regulations.

 

 

Government publishes White Paper and draft Bill on overhaul of social care system

July 11th, 2012 by admin in Social Care

On 11 July 2012, the government published a White Paper, ‘Caring for our future: reforming care and support’, and its draft Care and Support Bill. The White Paper and Bill follow on from the Law Commission’s report on adult social care which was published last summer.

The government describes the Bill as follows: “This draft Bill consolidates provisions from over a dozen different Acts into a single, modern framework for care and support. It is intended to do more than bring those Acts together; it achieves a fundamental reform of the way the law works. It places the wellbeing, needs and goals of people at the centre of the legislation to create care and support which fits around the individual and works for them. It provides a new focus on preventing and reducing needs, and putting people in control of their care and support. For the first time, it brings carers into the heart of the law, on a par with those for whom they care.”

The draft Bill has been published for public consultation and pre-legislative scrutiny in Parliament. The Bill and White Paper may be found on the Department of Health’s website (www.dh.gov.uk).

 

Sustainable Communities

June 28th, 2012 by James Goudie KC in Local Authority Powers

The Sustainable Communities Regulations 2012, SI 2012/1523, come into force on 26 July 2012, in England only.  They are the first Regulations to be made under the Sustainable Communities Act 2007, as amended in 2010.  The 2007 Act provides a channel whereby local people can ask Central Government, via their local authority, to take action which they consider will help improve the economic, social or environmental well-being of their area.  The Act provides for the SoS to invite local authorities to consult locally and to make proposals for enhancing local sustainability and well-being.  The main elements of the Regulations are that: (1) local authorities must, before making a proposal, to consult and try to reach agreement about the proposal with representatives of interested local persons, and have regard to guidance issued by the SoS; (2) the SoS must consider each proposal, and publish the decision, giving reasons, and the action to be taken if the proposal is to be implemented; (3) a “Selector” will be appointed who will consider the resubmission of proposals from local authorities whose proposals have been rejected by the SoS: the Selector must decide whether to submit them to the SoS for reconsideration, giving reasons, and must appoint an Advisory Panel to assist it in deciding whether these proposals should be submitted for reconsideration; and (4) the SoS must publish proposals submitted by the Selector with its reasons, and and must then consult and try to reach agreement with the Selector, before publishing the subsequent decision and giving reasons, and specifying the action to be taken if the proposal is to be implemented.

 

 

Procedural Fairness

June 27th, 2012 by James Goudie KC in Council Tax and Rates

R (Dudley MBC) v SoS for CLG [2012] EWHC 1729 (Admin) concerned a decision by the SoS to change the way in which he would make payments pursuant to s88B of LGFA 1988/s31 of LGA 2003 under a PFI scheme.  There were five grounds of challenge. The first, procedural fairness, relating to consultation, succeeded.  The other four failed. They were breach of a substantive legitimate expectation; application of a rigid and inflexible policy; failure to take relevant facts into account/error of fact; and breach of the PSED under s149 Eq A 2010.

As to the first ground, Singh J considered both whether there was a duty of consultation, and, on the basis that there was, the requirements of a lawful consultation.  As to the former, there were two bases on which the Council argued that it was entitled to be consulted before the decision was taken to withdraw the PFI grant on a declining balance basis and to replace it with the annuity basis. The first was that it had a legitimate expectation that there would be consultation based on the defendant’s past practice. The second was that, quite apart from such a procedural expectation, the claimant had an expectation that its grant would continue to be paid on the declining balance basis and that fairness required that, before it was withdrawn, it would be consulted on this issue. Singh J observed that it was important to note that, in making the second of those arguments, the Council for this purpose relied on its expectation not to argue that the SoS was not entitled to reach the decision he did at all (that was the subject of a separate ground, based on the doctrine of substantive legitimate expectation), but that, before he did so, he had to follow a fair procedure. In other words, for this purpose, the Council submitted that its expectation gave rise to procedural rights, not substantive rights.

So far as the Council’s first argument was concerned, Singh J observed that in principle a legitimate expectation of consultation (i.e. a procedural expectation) can arise either from a promise that there will be consultation or from a past practice of such consultation. In the present case, the Council did not suggest that there was any promise of consultation. However, it did contend that there had been a past practice of consultation. Singh J, however, was not persuaded by that argument. All that the Council was able to rely on was the fact that in 2004 the SoS did consult when consideration was given to introducing the annuity basis as an alternative to the declining balance basis. In Singh J’s judgment, one incident of consultation of that type could not amount to a practice of consultation such as to give rise to a legitimate expectation of such consultation in the future.

However, the Council’s second argument did not depend on either a promise or a past practice of consultation. The starting-point is that, if a decision-maker intends to take a decision which affects a person’s rights, the duty to act fairly (in earlier parlance “natural justice”) will usually be required by public law, which will imply such a duty into a statutory scheme even when none is expressly laid down.

Singh J considered a number of previous authorities, concluded that the SoS’s decision “fundamentally altered the nature of the commitment” which had previously been made by the SoS to fund capital projects, that the impact on the Council was “pressing and focussed”, that there was a small and limited class of local authorities that were affected by the SoS’s decision, and that (para 69): “To make the decision abruptly without consultation would, in the circumstances of the present case, be so unfair as to amount to an abuse of power”.

Singh J went on to consider whether the requirements of a lawful consultation had been met.  He concluded that they had not.  Consultation had not been at a formative stage of the decision-making process.  The decision letter invited representations only as to how the impact of the decision might be mitigated in the Council’s case, but not about the principle of the decision itself.

As regards the PSED, Singh J said:

“93.      I accept the defendant’s submissions in relation to this ground of challenge. As the authorities have frequently stressed, what is “due regard” is such regard as is appropriate in all the circumstances. In my judgement, the defendant was not required to have regard to the matters set out in section 149 of the Equality Act for two main reasons.

94.       First, the suggested impact is a contingent and indirect one. The defendant’s decision was a financial one. It will frequently be the case that the central government makes financial decisions of a general kind which leave up to individual local authorities the manner of their implementation. The relevant authorities may have a choice about whether they cut or reduce a particular service or how they find alternative funding for it if they feel that service should continue. The local authority concerned may well have to perform the Public Sector Equality Duty itself before it decides which of various courses it should take in order to implement the financial decision of the central government.

95.          Secondly, and in any event, the defendant was entitled to take the view that he did, that the detrimental consequences which the claimant suggests would flow from the decision under challenge are not only contingent but lie some years ahead in the future, given the funding that the defendant has made available to the claimant until 2015. The defendant’s simple submission was that, in those circumstances, the duty may arise in 2015 but cannot be said to have arisen now. There are too many vicissitudes in life for a court to be able to say that the defendant has breached the Public Sector Equality Duty as things stand at present. I accept that submission by the defendant.”

 

Homelessness

June 20th, 2012 by Christopher Knight in Housing

In an extempore judgment R (on the application of Cranfield-Adams) v Richmond upon Thames London Borough Council (QBD, judgment of 19 June 2012) which has not yet been properly reported, Jeremy Stuart-Smith QC, sitting as a Deputy, held that it was lawful for a local housing authority and in accordance with its duty under s.193 of the Housing Act 1996 to defer a homeless man’s application for housing for two years where he had previously refused a suitable offer of accommodation.

The Claimant had originally applied under Part VI of the Act and was allocated housing, which he refused. He subsequently became homeless as a result and re-applied under Part VII. The local authority applied the policy it had warned the Claimant of, and deferred his application for two years as a result of his previous rejection of suitable accommodation. The judge held that the authority was applying a unitary policy which synchronised Parts VI and VII. The refusal of accommodation was a reasonable factor for the authority to take into account under its policy, which was compatible with s.193.

Localism Act 2011

The Localism Act 2011 (Commencement No.6 and Transitional, Savings and Transitory Provisions) Order 2012 (SI 2012/1463) brought into force, on 18 June 2012, certain provisions of the Localism Act 2011 relevant to housing. In particular, it brought into force:

·         s.145 (reversing the amendments to s.159 of the Housing Act 1996 made by the Homelessness Act 2002, so that the majority of housing transfers are once again outside Part VI);

·         s.146 (inserting a new s.160ZA into the 1996 Act which reintroduces the concept of the qualifying person);

·         s.147 (inserting a new s.166A into the 1996 Act, re-enacting much of the current s.167, save that there is no provision that reasonable preference need not be accorded to persons who have been guilty of unacceptable behaviour, as authorities will be able to decide that such applicants are not qualifying persons under the allocation schemes permitted by s.146).

 

Public Sector Equality Duty (“PSED”)

June 13th, 2012 by James Goudie KC in Local Authority Powers

In R (Siwak) v Newham LBC (2012) EWHC 1520 (Admin) Cranston J held that the local authority had not failed to comply with the PSED under s149 of Equality Act 2010.  Policies under formulation were the subject of equality analysis.  It was not for the Court to micro-manage the process.  Consultation before proposals were formulated would have been premature.

 

 

R (KM) v Cambridgeshire CC [2012] UKSC 23: Supreme Court finds direct payment level rational and declines to reconsider Barry

June 6th, 2012 by Trevor S. in Local Authority Powers

Barry survives

In KM, the Supreme Court was expected to reconsider the House of Lords’ decision in R v Gloucestershire CC, ex p Barry [1997] AC 584.  In Barry, the House of Lords found by a bare majority, bowing perhaps to pragmatism rather than a strict interpretation of the statutory language, that local authorities may have regard to their own resources when assessing the level of services which are to be provided to individuals under section 2(1) of the Chronically Sick and Disabled Persons Act 1970.

Last year, in R (McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33, [2011] PTSR 1266, Lady Hale cast doubt on Barry and encouraged litigants to argue that it should be overruled.  The Supreme Court in KM subsequently gave permission for a ground of appeal that Barry had been wrongly decided.  However, when the KM hearing commenced it became apparent that the Barry issue was irrelevant (Lord Wilson at [7], Lady Hale at [41]).  The Court was therefore careful to say nothing about whether Barry was right or wrong.

KM:  direct payment amount was rational

The challenge was to the local authority’s decision to make direct payments of £85,000 per annum to KM, who is profoundly disabled.  The local authority had calculated that sum by applying its “Resource Allocation System” (“RAS”), along with its “Upper Banding Calculator”, which it used to calculate additional amounts in severe cases.  Two grounds were raised, namely, irrationality and a failure to give reasons.

Lord Wilson, with whom all six of the other Justices agreed, gave the leading speech.  At [15], he broke down the analysis required of a local authority by section 2 of the 1970 Act into the following three questions:

(1)     what are the needs of the disabled person;

(2)     in order to meet these needs is it necessary for the authority to make arrangements for the provision of any of the listed services;

(3)     if so, what are the nature and extent of the services for which it is necessary for the local authority to make arrangements?

These stages reflect the Secretary of State’s guidance (“Prioritising need in the context of Putting People First”, February 2010), which splits needs into “presenting needs” (identified by question (1) above) and “eligible needs” (identified by question (2) above) [16-18].  Once a person’s needs are deemed eligible, the local authority is under an absolute duty to meet them, and cannot refuse to do so on account of limited resources [19].

Direct payments under the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009 (SI 2009/1887) give rise to a fourth question, namely [23]:

(4)     what is the reasonable cost of securing provision of the services for which it is necessary for the authority to make arrangements?

Lord Wilson accepted that, in answering that question, it would be unduly laborious for a local authority to start by costing each service for every disabled person [24].  He therefore approved the general use of RASs as a lawful tool to provide a “ball-park” figure, subject to adjustment [26].  He commented that, since RASs generally work by allocating points to eligible needs and then ascribing a cost to each point, there must be a “realistic nexus both between needs and points and between points and costs” [25].  He then said that, once the indicative sum has been identified, it “is crucial [that] the requisite services in the particular case should be costed in a reasonable degree of detail so that a judgement can be made whether the indicative sum is too high, too low or about right”, this exercise usually being labelled the “support plan” [28].  In this respect, Lord Wilson at [37] approved guidance from R (Savva) v Royal Borough of Kensington [2010] EWCA Civ 1209 that adequate reasons can be achieved with “reasonable brevity”, often by listing the required services, and the suggested timings and hourly costs.

On the particular facts of KM’s case, in which the local authority had found that all of his “presenting needs” were “eligible needs” which it was under a duty to meet (hence the irrelevance of the Barry issue), Lord Wilson found that the local authority’s use of its RAS was rational, and that any flaw in computation was likely to have been in KM’s favour [38].  He criticised the authority for failing to make a more detailed presentation of its assessment of the costs of KM’s necessary services.  However, in the light of the authority’s amplification of its reasoning during the subsequent litigation, he said that it would be a pointless exercise of discretion to quash the decision so that his entitlement might be considered again, perhaps even to his disadvantage [38].

Comment

Because Barry was not reconsidered, the impact of KM on the law is rather limited.  Nonetheless, it contains useful confirmation, following Savva, that RAS-calculated payments must be accompanied by some explanation of the services which the authority considers to be covered by the payments.

RASs are often criticised for being opaque:  they rely on algorithms which are not revealed to service users; and they translate an individual’s needs into a budget, without identifying the costs of the particular services required to meet those needs.  This shortcoming is compounded by the fact that, where an authority provides or commissions services, it is relatively clear whether or not it is meeting eligible needs; but where it is providing money to purchase services, it is much less clear whether eligible needs are being met.  Service-users sometimes complain that they are offered explanations for personal budgets which are no less illuminating than being told, “Computer says no”.  Indeed, Lord Wilson agreed that “a local authority’s failure to meet eligible needs may prove to be far less visible in circumstances in which it has provided the service-user with a global sum of money than in those in which it has provided him with services in kind” [36].  This is why it is important that RAS-calculated budgets are accompanied by an explanation of the services which should be covered by the budget.

 

« Older Entries
Newer Entries »