Savva, R (on the application of) v Royal Borough of Kensington and Chelsea

Once a local authority has assessed a disabled person’s eligible needs and decided that arrangements are necessary, it has an absolute duty to provide suitable services or a sufficient personal budget. A resource allocation system may lawfully generate an indicative starting figure, including by reference to relative needs, provided the authority then considers the individual circumstances and fixes a budget capable of meeting the assessed needs.

Common law fairness requires the authority to explain how a personal budget was calculated. The reasons may be brief but must enable the recipient to understand and, if appropriate, challenge the calculation. A timely offer to supply reasons on request may satisfy that duty if the recipient makes no request.

The local authority assessed the appellant’s eligible community-care needs and allocated a personal budget of £170.45 per week. Its resource allocation system had generated a lower indicative figure by comparing her needs with the distribution of needs and care packages within the authority’s area.

The Administrative Court, in [2010] EWHC 414 (Admin), rejected the appellant’s contention that this methodology was unlawful. It nevertheless quashed the allocation because the authority had not explained how the final figure was calculated.

The appellant appealed against the ruling on methodology. The authority cross-appealed against the ruling that common law fairness required reasons. The central issues were whether a relative, non-linear resource allocation system could lawfully be used as a starting point and whether reasons had to accompany or be available for the final personal-budget decision.

1. Both the appeal and the cross-appeal were dismissed unanimously. Maurice Kay LJ gave the judgment, with which Longmore and Patten LJJ agreed.

2. Once an authority has assessed eligible needs and decided that arrangements are necessary, section 2 of the Chronically Sick and Disabled Persons Act 1970 imposes an absolute duty to provide services meeting those needs or a personal budget sufficient to purchase them. The authority may consider relative need and available resources when deciding whether arrangements are necessary, but not when avoiding the duty after that decision has been made.

3. The authority’s non-linear resource allocation system was lawful. Its output was only an indicative starting point, rather than a cap or final allocation. The panel subsequently considered the individual self-assessment and formal needs assessment, and increased the indicative figure from £112.21 to £170.45. The methodology therefore did not displace the authority’s obligation to meet the appellant’s assessed needs in absolute terms. The refusal of a declaration of unlawfulness was upheld.

4. Neither the governing statutes nor the guidance expressly required reasons. Common law fairness nevertheless required the authority to explain how it converted the right to services into a monetary sum. Without an explanation, the recipient could not establish whether the calculation was proper or make an informed complaint or legal challenge. The administrative burden on the authority did not outweigh this requirement.

5. A sufficient explanation may ordinarily be brief. In this case, it could have listed the required services, their assumed duration and the assumed hourly cost. The reasons had to be provided or approved by the decision-making panel in a document. An informal explanation from a social worker or support broker would lack the necessary authority and consistency. Individual decision notices did not have to explain the resource allocation system itself, provided that accessible information about the system was published separately.

6. A timely notice offering reasons on request may satisfy fairness. A court would ordinarily reject a reasons-based judicial review claim where the recipient had made no request in response to such an offer. No offer or reasons had been given here before proceedings, so the order quashing the original decision was upheld. The authority had since made a reasoned replacement decision. It was unnecessary to decide whether later witness evidence cured the original failure or whether Article 6 of the European Convention on Human Rights imposed any further requirement.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 1209, the court dismissed the appellant’s appeal on the lawfulness of the resource allocation methodology and dismissed the authority’s cross-appeal on the duty to give reasons.

2. High Court, Queen’s Bench Division, Administrative Court: In [2010] EWHC 414 (Admin), a deputy High Court judge held that the resource allocation methodology was lawful but quashed the personal-budget decision because adequate reasons had not been provided.