R (on the application of KM) (by his mother and litigation friend JM) v Cambridgeshire County Council

Under section 2(1) of the Chronically Sick and Disabled Persons Act 1970, a local authority must identify a disabled person’s needs, decide which needs require authority-arranged services and determine the nature and extent of those services. Once a need is eligible, the duty to meet it is absolute.

A direct payment must reflect the reasonable cost of securing the required services. A resource allocation system may provide an indicative figure, but the authority must cross-check it against a sufficiently detailed individual costing. Review is especially rigorous where a global payment profoundly affects the recipient. Adequate reasons must explain how the sum can meet the identified needs, although quashing remains discretionary where subsequent evidence establishes the decision’s lawfulness and reconsideration would serve no purpose.

The appellant was a profoundly disabled adult whose needs Cambridgeshire County Council had classified as critical. The council offered him an annual direct payment of approximately £85,000 in discharge of its duty under section 2(1) of the Chronically Sick and Disabled Persons Act 1970. He challenged the amount as irrational and inadequately reasoned.

The Administrative Court refused permission for judicial review: [2010] EWHC 3065 (Admin). The Court of Appeal granted permission, heard the substantive claim itself and dismissed it: [2011] EWCA Civ 682; (2011) 14 C.C.L.Rep.402.

The appeal concerned the lawful calculation and explanation of a direct payment after all the appellant’s needs had been accepted as eligible. A proposed reconsideration of whether local-authority resources could affect the earlier eligibility assessment did not arise on the facts and was not heard.

1. Appeal dismissed unanimously. Lord Wilson delivered the leading judgment, with which Lord Phillips, Lord Walker, Lord Brown, Lord Kerr and Lord Dyson agreed. Lady Hale agreed that the appeal should be dismissed for Lord Wilson’s reasons.

2. Section 2(1) of the Chronically Sick and Disabled Persons Act 1970 requires an authority to determine: the person’s needs; whether authority-arranged listed services are necessary to meet them; and the nature and extent of those services. Where direct payments apply, the authority must then determine the reasonable cost of securing those services. Resource availability may be considered at the eligibility stage. Once a need is eligible, however, the duty to make provision at the later stages is absolute. The authority may select a cheaper service if that service duly meets the need.

3. A resource allocation system and upper-banding calculator may lawfully generate an indicative sum. They cannot replace an individual assessment. The authority must cost the required services in a reasonable degree of detail, ordinarily through a support plan, so that it can judge whether the indicative figure is too high, too low or about right. This approach was consistent with R (Savva) v Kensington and Chelsea Royal London Borough Council [2010] EWCA Civ 1209.

4. The intensity of judicial review depends on the determination’s impact. The required scrutiny was high because the decision profoundly affected the appellant and a global monetary award could conceal an unmet need. The reviewing court nevertheless had to respect the different institutional role of the local authority.

5. The £85,000 calculation was rational. The council had permissibly used its allocation tools and cross-checked the result. Its assumptions concerning the absence of family support and the quantity of paid care were, if erroneous, likely to have operated in the appellant’s favour.

6. The council should have explained the calculation earlier and should have presented a more detailed assessment of how the sum could meet the appellant’s needs, particularly the principal cost of paid carers. Its later explanation of the indicative calculation did not itself repair that deficit. Evidence filed during the proceedings nevertheless enabled a fully informed examination and left no real doubt about the determination’s lawfulness. Quashing would therefore have been pointless and might have led to a less advantageous reassessment.

7. The court declined to reconsider R v Gloucestershire County Council ex p Barry [1997] AC 584 because resource constraints had not informed the challenged determination. Lord Wilson treated Barry as establishing that resources were relevant when deciding whether authority-arranged services were necessary, while expressing doubt about any wider proposition affecting the initial identification of needs. Lady Hale’s separate observations on the scope of Barry were expressly obiter.

1. United Kingdom Supreme Court: Dismissed the appellant’s appeal unanimously in R (on the application of KM) (by his mother and litigation friend JM) v Cambridgeshire County Council [2012] UKSC 23.
2. Court of Appeal: Granted permission, conducted the substantive judicial review under rule 52.15(4) of the Civil Procedure Rules 1998, and dismissed the application: [2011] EWCA Civ 682; (2011) 14 C.C.L.Rep.402.
3. Administrative Court: Refused permission to apply for judicial review: [2010] EWHC 3065 (Admin).