by Allan Norman, principal social worker and solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.
The high court decision in KM, R (on the application of) v Cambridgeshire County Council  EWHC 3065 (Admin) (26 November 2010) is, in my judgement, more bad news for holders of direct payments – following on from Community Care’s report earlier this week of the risk of liability for redundancy payments if direct payments are cut.
This is more subtle. It’s about the transparency of the resource allocation system (RAS), a subject on which I have blogged before under the provoking title ‘Points mean Prizes: the RAS comes under scrutiny‘. At that time, I expressed pessimism about the system generally, but some optimism that the duty to give reasons may alleviate some of the concerns I had. The latest judgement reinforces the pessimism, and calls into question my optimism.
Before coming to the judgement, however, there are two intervening court decisions to note, both last month, and both involving the same London borough:
- In McDonald, R (on the application of) v Royal Borough of Kensington & Chelsea  EWCA Civ 1109 (13 October 2010), the court considered the nature of a ‘need’ and whether a ‘need’ was properly expressed in terms of a need for a service – specifically, did McDonald need help to use a commode, or did she need help to manage incontinence? The Court, favouring the latter, was satisfied the need could properly be met by incontinence pads; and
- In Savva, R (on the application of) v Royal Borough of Kensington and Chelsea  EWCA Civ 1209 (28 October 2010), the Court of Appeal upheld the earlier decision of the High Court, dismissing appeals from both sides.
Today’s case explores further the duty to give reasons as set out in Savva. Refusing permission for judicial review, the Court specifically rejects the proposition that the duty to give reasons extends to setting out the services that can be purchased with the sum allowed:
“[The Claimant] criticises the Defendant for failing to provide an explanation setting out the services required to meet the Claimant’s needs. That appears to me to be a complete misunderstanding of the system of self-directed support. Both the RAS and the Upper Banding Calculator, compared as they were with the assessment and operated using the skill and experience of social workers, were assessment of needs and not services but the RAS was a tool for translating needs into a sum which was adequate to provide the services for those needs by reference to the average costs of the provision by the authority of meeting those needs for other disabled people.”
Now, given that the freedom to spend a direct payment as you choose is, within the government’s promotional rhetoric, a positive characteristic of the scheme, why should we not welcome (because I most certainly do not) the court’s emphasis on needs rather than on services? My answer is simple: because services have a quantifiable cash value, needs do not.
And why, in turn, does that matter? Well, it goes back to my ‘points means prizes’ analysis before:
“It seems all too easy to predict a chain in which:
- first, services are provided in cash rather than in kind;
- then, the link between the value of the care and the amount of the cash payment is obscured;
- next, that link is formally severed;
- finally, it is the service user’s problem that budgets and targets drive the cash payment with no reference to need whatsoever
Those of us who can see it coming would relish an early decision that the RAS was unlawful.”
…I said. This latest decision takes us a long way towards that third step. If McDonald is rightly decided, that a need should not be identified as being for a service, and if KM is rightly decided, that there is no need to identify how services might be purchased with the given sum to meet the need, then the link between the sum and the need is as clear as mud, and about as much use. The link is frankly as good as broken. Needs now have a notional cash value which need bear no relation to any real life method of meeting those needs.
And who benefits from needs having only a notional cash value? Not the end user, not the service user, that is for certain.