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

A consultation undertaken without a statutory duty must nevertheless be proper and vigorous. Its required scope depends on the decision actually under consideration. Where an existing resource-allocation scheme is being adapted to include respite care, consultation may properly focus on access to and operation of that scheme rather than its original principle or precise financial outcomes. A mathematical indicative budget does not replace the statutory duty to assess individual needs. An effective moderation process may provide the necessary safeguard where the indicative budget proves inadequate. The lawfulness of a policy is distinct from its application in individual cases.

The claimant, acting by his mother and litigation friend, sought judicial review of Birmingham City Council’s decision following a review of its Fair Access to Short Breaks to Carers policy. The council proposed incorporating respite care into an existing resource-allocation scheme involving self-assessment, indicative budgets, support plans and moderation. The claimant argued that the consultation was unlawfully limited, that the mathematical model did not properly address respite care, that the scheme displaced statutory needs assessments, and that the council had failed to comply with its disability equality duties.

The central issue was whether the review and proposed scheme were unlawful at policy level, notwithstanding the availability of individual assessment and moderation.

1. The claim was dismissed. The court granted permission for judicial review because the grounds were properly arguable, but concluded that none succeeded.
2. A consultation is required to be proper and vigorous even where the decision-maker has no legal duty to consult. The relevant question is the subject matter of the consultation. The council was consulting on adapting an existing resource-allocation scheme to incorporate respite care, not on the principle of that scheme or on predetermined financial outcomes. It was therefore lawful to limit the consultation accordingly. The absence of the detailed mathematical model did not invalidate the consultation: the circumstances were materially different from R (Eisai Limited) and the National Institute for Health and Physical Excellence [2008] 101 BMLR 26.
3. The indicative budget was only the starting point. It did not displace the council’s duty to assess individual needs through the support plan and social-worker process. Where the indicative budget was inadequate, the moderation procedure had to be used. Economic considerations could be relevant both to meeting needs and to determining the extent to which a need was established, consistently with R v Gloucestershire County Council ex parte Barry [1997] AC 584.
4. The scheme was not unlawful merely because its operation required monitoring and possible future adjustment. The council had undertaken to review its operation, and the moderation process supplied a sufficient safeguard at policy level. Individual failures could be challenged when the scheme was applied.
5. The council had properly considered its duties under section 49A of the Disability Discrimination Act 1995. The court should not readily substitute its own view for the council’s judgment where the authority had addressed competing demands across social care. The reasoning in R (Ahmad) v LB Newham [2009] PTSR 632 supported that approach. The decision in R (Rafael Savva) v Royal Borough of Kensington and Chelsea [2010] EWHC 414 (Admin), affirmed on appeal at [2010] EWCA Civ 1209, confirmed that an inadequate indicative budget did not itself make the policy unlawful and that a proper breakdown of the final budget was required.

The judgment is a first-instance decision. It records earlier judicial review proceedings between the same parties, resolved by a consent order requiring a review of the respite-care policy. No prior appellate decision concerning this claim is stated.