Update: social welfare

Setting personal budgets

It is well established that once a local authority has identified an eligible community care need, limited resources and the needs of other service users cannot be relied upon as reasons not to meet that need (see section 2 of the Chronically Sick and Disabled Act 1970 and R v Gloucestershire CC ex p Barry [1997] AC 584).

This principle continues to apply notwithstanding the move away from the direct provision of community care services by local authorities to a system of direct payments, or personal budgets, under which it is for the sick or disabled person to procure their community care services using financial assistance provided by the local authority.

However, with the move to personal budgets come difficult questions about how local authorities determine the level of the financial assistance that is provided, and, in particular, how they ensure that the financial assistance is sufficient to meet their section 2 duty.

In R (Savva) v Kensington & Chelsea [2010] EWCA 1209, it was accepted that Mrs Savva's community care needs had increased; however, her personal budget remained at the same level. Mrs Savva was not given any reasons for this.

Her solicitors made enquiries and learned that in setting the level of Mrs Savva's personal budget the council had used a resource allocation system (RAS), a mathematical tool promoted in Department of Health guidance. There are different types of RAS. The RAS used by the council factored in the resources available to the council and the needs of other service users. Given Barry, Mrs Savva argued this was unlawful.

Although there is no statutory duty to provide reasons in this context, the Court of Appeal upheld the High Court's decision that fairness required the provision of reasons '“ or, at the least, notification to service users that they are entitled to a full explanation on request '“ particularly given the emphasis on transparent decision making in the relevant guidance documents.

As to the use of the RAS, the Court of Appeal held this was not unlawful. However, this was only because the council was able to satisfy the court that the figure generated by the RAS tool (£112pw) had been used only as a starting point in the decision-making process, and that in fixing the final figure (£170pw) the council had focused sufficiently on the absolute nature of its section 2 duty. Where local authorities are unable to demonstrate this, and rely too heavily on RASs, their personal budget decisions will be susceptible to challenge.

Defining and meeting care needs

Two weeks before the judgment in Savva, the Court of Appeal considered the relevance of resources in meeting community care needs in a slightly different context.

In R (McDonald) v Kensington & Chelsea [2010] EWCA Civ 1109, the council had conducted a community care assessment and concluded that Mrs McDonald, a 67 year old with mobility and bladder control problems, 'needs assistance at night to use the commode'. Initially, this need was met through a night time carer.

Subsequently, Mrs McDonald was told that resource considerations meant that the council would stop providing funding for a night time carer. Instead, Mrs McDonald was told she would have to use incontinence pads and/or incontinence sheets. She objected.

At first instance, the judge decided that while the community care assessment said she 'needs assistance at night to use the commode', it was open to the court to conclude that the real need was for Mrs McDonald to be safe. As the provision of pads and/or sheets met that need (because it avoided the risk of falls by ensuring that Mrs McDonald did not need to get up at night) the council had acted lawfully.

The Court of Appeal disagreed. The need that had been identified in the assessment was clear and unambiguous and it was not open to the court to redefine it. Consequently, in failing to provide Mrs McDonald with assistance to use the commode at night, the council had acted unlawfully.

However, between the date of the first instance hearing and the hearing in the Court of Appeal, the council had conducted two 'care plan reviews', through which the council purported to redefine Mrs McDonald's needs, expressly providing that her relevant need was to be safe at night rather than able to use a commode. The council then said that the need to be safe at night could be met in a number of different ways, and, given the pressure on resources, they were entitled to select the cheapest method '“ i.e. incontinence pads and/or sheets '“ notwithstanding Mrs McDonald's objections. The Court of Appeal endorsed this approach.

That a local authority can redefine eligible needs for avowedly financial reasons, and do so without a full needs reassessment (into which the service users, family members and carers would all be entitled to have significant input) is of concern, particularly where doing so can result in such a significant change or reduction in the community care services that are provided. For that reason, it is understood that those representing Mrs McDonald are applying for permission to appeal to the Supreme Court.

Disability equality duty

In Mrs McDonald's case an attempt was made to bolster her challenge using section 21B of the Disability Discrimination Act 1995 (DDA): the duty on those exercising public functions to make reasonable adjustments to policies or practices which make it impossible or unreasonably difficult for disabled people to benefit from that public function (now replaced by section 20(3) of the Equality Act 2010). That challenge floundered because the Court of Appeal said it was unable to identify any such relevant policy or practice.

However, an alternative way of using the DDA to bolster such challenges would be to rely on section 49A(1) DDA, i.e. the disability equality duty. Disability equality duty challenges have tended to focus on challenges to policies. However, the Court of Appeal's recent decision in Pieretti v Enfield Council [2010] EWCA Civ 1104, a homelessness case, emphasises that the duty is equally applicable to individual service provision decisions.

Mr and Mrs Pieretti were in their 60s. They made a homelessness application to Enfield under part 7 of the Housing Act 1996 (HA). Their former landlady informed Enfield that she had evicted them because of their failure to pay the rent on time. Their GP reported to Enfield that they were both suffering from depression.

Enfield determined that they were intentionally homeless; i.e. that their actions had resulted in the loss of their accommodation, that their actions were deliberate, and that their actions were not carried out in 'good faith' (meaning that they were not carried out at a point when they were unaware of some relevant fact: section 191(2) HA 1996). That decision was challenged, inter alia, on the basis that Enfield had had no regard to the section 49A(1) duty.

In the Court of Appeal, Enfield advanced three reasons why they were not required to have regard to the section 49A(1) duty: first, that the section 49A(1) duty only applied to policy formulation, not to individual decisions; second, that if it did apply it only applied once it is decided that an applicant is owned a substantive duty; third, that part 7 of the HA 1996 and the statutory code of guidance which accompanies it addresses disability issues sufficiently so that section 49A(1) does not add anything.

Each of these reasons was described by the Court of Appeal as clearly wrong. First, section 49A(1) is expressed as applying to all public functions; consequently it applies to decisions on individual applications as well as to macro-policy decisions. Second, as it applies to all public functions, section 49A(1) applies just as much to decision making about eligibility, as to decisions about the discharge of a duty to accommodate.

Third, as to what section 49A(1) added, the court held that the six 'needs' (or policy objectives) listed in section 49A(1) did not necessarily create new individual rights, but that they were nonetheless important and, in particular, were 'designed to secure the brighter illumination of a person's disability so that, to the extent that it bears upon his rights under other laws, it attracts full appraisal'.

In Pieretti, that meant a much sharper focus on the possibility that the applicants' mental health problems might have caused the delayed rent payments, and heightened consideration of whether Mr and Mrs Pieretti's actions were, as a result, either not deliberate or were carried out in good faith.

In a case such as Mrs McDonald's, it is arguable that the section 49A(1) should similarly colour an authority's choices as to how to meet an eligible need, with the section 49A(1) duty acting as a significant countervailing factor against choosing the cheapest way of meeting an eligible need, where a more expensive option might better promote the section 49A(1) policy objectives.

Such arguments are likely to gain even more traction when the section 49A(1) DDA 1995 duty is replaced, hopefully at some point next year, by the new public sector equality duty found at section 149 of the Equality Act 2010, in which both age and disability are defined as protected characteristics.

Accommodation as a mental health aftercare

It is often suggested that section 117 of the Mental Health Act 1983 is capable of providing an alternative route into accommodation for former mental health patients who might otherwise be homeless. However, in R (Mwanza) v (1) Greenwich Council & (2) Bromley Council [2010] EWHC 1462, Hickinbottom J has suggested that section 117 is rarely capable of operating in this way.

Mr and Mrs Mwanza arrived in the UK from Zambia in 2000. Soon after arriving, Mr Mwanza was compulsorily admitted to hospital under section 3 MHA 1983. Upon his discharge, in 2001, Greenwich social services, together with the relevant NHS trust, accepted they were under a duty to provide Mr Mwanza with section 117 'aftercare services'.

By 2010 the family were in dire straights: Mrs Mwanza's leave to remain as a student appeared to have expired, this made it impossible for them to obtain work, secure social security benefits, or seek help under part 7 of the Housing Act 1996; consequently they had become homeless and destitute and this had caused a relapse in Mr Mwanza's mental health problems.

A community care assessment early in 2010 identified a clear need for accommodation; however, both Greenwich and Bromley (to where Mr and Mrs Mwanza had moved) refused to provide accommodation assistance. In light of this, a claim for judicial review was brought against Greenwich, relying on section 117 MHA 1983, and against Bromley, relying on section 21 of the National Assistance Act 1948. The claim against Bromley failed for two reasons. First, Bromley's conclusion that section 21 NAA 1948 was not engaged because there was no unmet need for 'care and attention' was lawful, given Mrs Mwanza's role as his carer. Second, Mr and Mrs Mwanza were no longer lawfully in the UK and so they were excluded from section 21 NAA 1948 by section 54 and schedule 3 of the Nationality, Immigration and Asylum Act 2002.

By contrast, immigration status is irrelevant for the purposes of section 117 MHA 1983. However, the claim against Greenwich also failed. First, because the section 117 MHA 1983 aftercare duty does not subsist indefinitely but only 'until such time as... the person concerned is no longer in need of such services' (section 117(2)). In this case, Greenwich's section 117 duties had come to an end in 2001, at which point they had assessed that Mr Mwanza no longer had a need for aftercare services.

Second, and more significantly, because section 117 will rarely, if ever, trigger an obligation to provide ordinary accommodation.

The term 'aftercare services' is not defined in the MHA 1983. This suggests a broad definition, with section 117 giving rise to a duty to provide any assistance necessary to prevent readmission. Consequently, it has come to be understood to include the provision of 'ordinary accommodation' whenever it would achieve this objective (see R(B) v LB Lambeth [2006] EWHC 2362).

However, Hickinbottom J's interpretation shifts section 117 from a preventative duty, to one which only arises if 'the need' for a service is caused (solely) by the person's mental disorder; so a need for assistance with mental health medication is covered, but a need for ordinary accommodation will not be because shelter is a general human need '“ not one specifically caused by a mental disorder.

The second part of this decision about section 117 and 'ordinary accommodation' is obiter dictum given the finding that there was, in fact, no subsisting section 117 duty (a point that has been overlooked in some of the reports of this decision, and which is one of the reasons why this decision has not been appealed). Nonetheless, Hickinbottom J's suggested approach to section 117 is troubling given its potential to result in a significant reduction in range of assistance available to the mentally ill under section 117, and, therefore, in a greater number of readmissions.