B, R (on the application of) v Cornwall County Council & Anor

A local authority assessing charges for community care services must first assess the disabled person’s eligible needs and the services required, and then assess ability to pay. The authority must engage with the service user and relevant carers, particularly where a reassessment may substantially increase charges. It must assess needs itself and cannot shift that statutory responsibility to the service user by demanding evidence without providing a fair opportunity to supply it. Disability-related expenditure must be assessed individually and local guidance cannot fetter the authority’s discretion. Care plans are relevant evidence, but their defects cannot fairly be relied on against a service user where the authority has failed to consult those who could clarify or supplement them. A decision made without the required engagement and on a legally restrictive approach to disability-related expenditure is unlawful.

B, a man with a moderate learning disability, lived in supported accommodation. Responsibility for his care transferred from an NHS trust to Cornwall County Council, which charged for community care services under its charging policy.

An initial assessment, made after meetings with B’s parents and care staff, assessed his weekly contribution as nil. A later desktop reassessment removed several items of disability-related expenditure and increased the proposed charge to £68.50 per week, subject to transitional arrangements. B sought judicial review on grounds including legitimate expectation, failure properly to assess his needs, and failure to follow statutory guidance. The central issue was whether the August 2008 charging decision had been made lawfully.

1. Claim succeeded. The decision communicated by the letter of 8 August 2008 was unlawful. The claim was stayed to allow a proper charging assessment and discussions between the Authority and B’s parents to take place.
2. The statutory scheme involved three related stages: assessment of care needs, determination of the services required to meet those needs, and assessment of the service user’s ability to pay and any charge. Under National Health Service and Community Care Act 1990, s 47, the Authority remained responsible for assessing eligible needs. A care plan was important evidence but was not indispensable if the statutory duties could otherwise be shown to have been performed.
3. The Authority acted unlawfully by reassessing B’s charge without engaging with B’s parents or other relevant carers. The Community Care Assessment Directions 2004 and the Secretary of State’s guidance required consultation about needs, proposed services and charging. The failure was material because the reassessment substantially increased the charge and departed from an earlier assessment made after direct discussion.
4. The Authority also adopted a defective approach to disability-related expenditure. Additional costs of an accompanying carer on a holiday could in principle qualify. Local guidance was guidance only and could not prevent the exercise of judgment in an individual case. The Authority could request evidence of expenditure, but it could not treat an evidential deficit as fatal without first assessing the need itself and giving the service user a proper opportunity to provide further evidence.
5. The care plans contained relevant evidence, including B’s dependence on family contact and support. The Authority could not rely on deficiencies in those plans while failing to consult B’s parents, who might have supplied the missing information. Later offers to review the assessment could not retrospectively validate an unlawful decision.
6. The legitimate-expectation ground failed. The first assessment was necessarily temporary and could not bind the Authority indefinitely, particularly if it had been erroneous and continued non-charging would have been unfair to other service users.