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

Judicial review is concerned with the legality and rationality of a local authority’s decision, not with an appeal on the merits of an assessment. A detailed professional assessment of care needs will not be irrational merely because it excludes management, training or commercial costs where those matters are addressed through the applicable hourly rate or contractual payment. A local authority is not required to identify alternative provision before declining a requested increase under a commercial care contract. It must, however, continue to secure the care specified in the care plan if the existing provider withdraws. The court will intervene in a contractual dispute only where the authority’s conduct is unreasonable in the Wednesbury sense or otherwise unlawful.

The claimant, a young adult with severe disabilities and highly demanding care needs, challenged two decisions of Birmingham City Council. The first was an assessment that she required 164 hours of care per week. The second was the refusal to increase the weekly payment made under an individual contract placement agreement for her residential care.

The claimant argued that the care-hours assessment failed to allow for training, induction and two-to-one care, and that the refusal to increase the payment was irrational because the assessed hours had increased. The court considered whether permission should be granted and, if appropriate, whether the permission hearing should stand as the substantive hearing.

1. Permission and disposition. The application for permission to apply for judicial review was dismissed. The court was satisfied that no arguable basis for intervention had been established.
2. Care-hours assessment. The assessment of 164 hours was not irrational. The social worker had considered in detail the care required by the claimant and had calculated hours for particular activities. The assessment addressed the claimant’s direct care needs. It was not required to include management, induction, training or profit as additional care hours, since those matters could be reflected in the hourly rate or, under an individual contract, in the agreed weekly payment.
3. Refusal to increase payment. The original payment of £2,500 per week was based on the overall care package proposed by the provider, not on the earlier superficial assessment of 118 hours at a particular hourly rate. The later increase to slightly above £2,700 reflected the council’s normal inflationary approach. The reasons for refusing a further increase were not irrational. Whether the provider was operating an efficient business was a commercial matter which the court would not determine in judicial review proceedings.
4. Public-law control of the contract. Although the claimant’s interest in the care provided might create a public-law dimension, the court would intervene in the essentially private-law dispute only if the council’s conduct was unreasonable in the Wednesbury sense or involved another error of law. The contractual dispute-resolution mechanism was the appropriate route for contractual matters.
5. Alternative provision. The council was not obliged, before refusing the requested increase, to demonstrate that exactly the same care could be provided elsewhere more cheaply. If the provider terminated the arrangement, the council would then have to ensure that the care specified in the claimant’s care plan was provided.
6. Costs. The claimant was permitted to have her publicly funded costs assessed. No order for the defendant’s costs was pressed.

This was a first-instance decision of the High Court (Administrative Court). The judgment does not state any subsequent appellate history.