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

In judicial review, a court should ordinarily declare a fundamentally flawed charging decision unlawful. A later offer to review the decision does not cure the defect where the authority continues to rely on the unlawful decision and does not restart the decision-making process. Discretionary relief may be withheld only in genuinely special circumstances, such as a highly technical and understandable error. A distinction must be drawn between an interim assessment within an ongoing process, which may be capable of later review, and a final decision imposing a charge. An authority must assess eligible needs itself, consult the service user and carers, and treat charging guidance as guidance rather than binding rules.

The respondent, B, was a disabled adult whose care transferred from the NHS to Cornwall Council. An initial assessment, made after consultation with B’s parents, produced a nil weekly charge. Following an internal review without further consultation, the Council notified B that he would have to pay weekly charges of £30 and later £68.50.

On judicial review, Hickinbottom J held the August 2008 charging decision unlawful, including because the Council had failed to engage with B’s parents, had adopted an unlawful approach to disability-related expenditure, and had failed properly to assess B’s needs: [2009] EWHC 491 (Admin). The Council appealed only against the relief granted, arguing that its offers to review the decision justified leaving it in place. The central issue was whether the court should decline to declare the decision unlawful.

1. Appeal dismissed. The Council abandoned its challenge to the finding of unlawfulness. The appeal was confined to whether the court should, as a matter of discretion, leave the charging decision in place.
2. A court should not ordinarily exercise its discretion in favour of an authority that seeks to preserve a fundamentally flawed decision. Here, the Council apologised and offered a review, but insisted on relying on the impugned assessment, required B to establish that the Council’s assessment was wrong, and refused to postpone the charge. An offer that maintains reliance on an unlawful decision is not one which B could fairly be criticised for rejecting.
3. The case was materially different from R (Ireneschild) v LB Lambeth [2007] EWCA Civ 234. That case concerned a community care assessment plan forming part of an ongoing process capable of further review. This case concerned the distinct decision to impose a charge after an earlier, consulted assessment had produced a nil charge. The possibility of keeping the amount under review did not make the initial imposition of the charge an ongoing process of the same kind.
4. The Council’s methodology for disability-related expenditure, particularly additional holiday costs attributable to B’s need for a carer, was also legitimately challenged. The judge had held that the Council’s guidance could not bind its discretion and that such expenditure might qualify as disability-related expenditure where supported by evidence. That unresolved methodological dispute provided a further reason not to leave the unlawful decision in force.
5. It was unnecessary to decide whether the relief point had been open below or on appeal, or whether a fresh lawful decision would necessarily take effect from 8 August 2008. The declaration of unlawfulness therefore stood.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the declaration that the Council’s charging decision was unlawful.
• Administrative Court, Queen’s Bench Division: Hickinbottom J, [2009] EWHC 491 (Admin), held the August 2008 charging decision unlawful and proposed relief allowing a proper reassessment.