Ed Mitchell finds councils should retain descretion if using a resource allocation system to quantify a service user’s care budget
Freedom to innovate in service provision is not absolute. The applicable legal framework, which may have been put in place in less enlightened times, constrains what can be done.
This was the theme of the High Court’s recent decision in R (Savva) v Kensington & Chelsea LBC. Sounding a note of caution about automated decision-making in social care, the court considered the legality of the resource allocation system (RAS) approach that many councils now use to quantify a service user’s personal budget.
In this case, a 70-year-old woman with arthritis and a heart condition completed a “personal budget supported self-assessment questionnaire”. This led to her being given 16 “points” under her council’s RAS which was converted into a personal budget allocation of £82 a week. However, this was only “indicative” and the woman’s actual personal budget was increased to £170 a week.
After a spell in hospital, the woman was given a higher RAS score of 28 points. Her actual budget, however, remained the same despite there being good evidence that her needs had increased. The woman claimed judicial review in the High Court.
The High Court held that the council’s RAS was not inherently unlawful. It was not an “unlawful cap” on spending which prevented the council from discharging its duty to provide services to meet eligible community care needs.
The council might have been vulnerable to challenge if its RAS-generated personal budget were always converted into an actual personal budget. However, the evidence showed that it was treated only as an indicative personal budget. The authority retained discretion to increase the budget if required in order to meet a service user’s eligible needs for community care services.
However, the court did rule that the council’s explanation of how it had arrived at the woman’s personal budget allocation was inadequate. The council’s decision was quashed and will have to be re-made. A full explanation must be given of the RAS decision-making process and why a particular personal budget was allocated to meet the woman’s eligible needs.
The legal cornerstone of community care is that, once a council has decided that services should be provided to meet a particular need, it becomes an eligible need that must be funded (R v Gloucestershire CC, ex parte Barry). This is achieved by a council either arranging services itself (whether or not under the badge of a personal budget) or making a direct payment.
The High Court’s point in Savva was that RAS was not the dominant factor in the particular council’s decision-making process. It simply gave an “indicative allocation” of a sum of money but, under the council’s particular decision-making arrangements, the computer was not fully “in control”. It was left to real people, taking real decisions on behalf of their employing council, to decide whether the indicative allocation was enough to purchase services to meet the service user’s eligible needs. This accounted for the failure of the argument that the RAS approach used by this council necessarily led to unlawful decisions being taken.
So, for those who are concerned that the RAS is taking over community care decision-making to the detriment of service users, this was really the wrong case with which to challenge that development.
Ed Mitchell is a solicitor and editor of Social Care Law Today
This article is published in the 22 July 2010 edition of Community Care under the headline “Computers cannot trump the judgement of social workers”