In this update, Ed Mitchell (above) looks at the latest courts decisions about the provision of services to disabled people
Using resource allocation system software when quantifying an individual’s personal budget is not inherently unlawful. So held the Court of Appeal in R (Savva) v Kensington & Chelsea Council (October 2010). The computer’s indicative budget would be checked by social workers to ensure that it could purchase sufficient services to meet eligible needs. Overall, therefore, the council had a lawful system for quantifying personal budgets.
In Savva, the court also considered whether reasons must be given for personal budgets decisions. Possibly pleasing councils, the court decided that they may adopt general policies of only supplying reasons if they are requested.
In R (Broster) v Wirral Council (October 2010), a council refused personal budgets for certain service users with learning disabilities. The council doubted whether, if personal budgets were allowed, the service users would have a genuinely free choice of service provider. It thought they might have no real option but to purchase care from their accommodation provider. The High Court upheld the council’s refusal.
Increasingly, local authorities have to take hard decisions about providing care services. The Court of Appeal’s decision in R (McDonald) v Kensington & Chelsea (October 2010) was the latest example of judicial reluctance to interfere with these hard decisions. It concerned a woman with an eligible need for assistance to urinate at night. Originally, the council funded a night-time carer but switched to supplying cheaper continence pads. The court upheld that decision. As the council was still meeting the woman’s eligible needs, it was acting lawfully.
The courts are more likely to intervene if they detect an unfair or haphazard decision-making process. As the care plan is supposed to embody a council’s decisions about service entitlement, a poor care plan can alert the courts to flawed decision making. A recent example was R (JF) v Hackney Council (November 2010). A severely autistic teenager was receiving 15 hours of respite care weekly. It was provided by a voluntary organisation but they withdrew due to the boy’s challenging behaviour. The council were unable to secure an alternative provider. After a year, a claim for judicial review was made. The claim was successful. Upon closer inspection, it became clear that the child had no genuine care plan. A document purporting to be a care plan did not contain a ‘detailed operational plan’. Without such a plan, the child could not hold the council to account for a failure to provide services. The High Court ordered the council to produce a proper care plan.
Ed Mitchell is a solicitor and editor of Social Care Law Today
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