KM v Cambridgeshire: the Supreme Court’s decision is not about assessment

“I’m just hoping that after tomorrow the link between value of cash payment and cost of meeting need is not utterly broken!”

…I tweeted yesterday, contributing to a debate about our hopes and expectations for today’s Supreme Court ruling in KM, R (on the application of) v Cambridgeshire County Council 2012] UKSC 23 (31 May 2012). This blog is about that case. I’m pleased to say that my hopes have been fulfilled. But I had set my sights low. I am utterly bemused by some of the other claims being made for this judgement.

Community Care: three key questions

Adult Community Care issues can generally be boiled down to three questions:

• Assessment: deciding what needs should be met
• Funding: deciding who is going to contribute what to the cost
• Delivery: deciding how the needs are going to be met

The KM case was about direct payments, so where do direct payments fall to be considered? Answering that question is key to understanding this judgement. Although direct payments involve the flow of money between local authority and service user, they are not about how the package is funded. And although there are tools to determine how much a direct payment should be, these need have little to do with assessment of eligible need. Direct payments are, pure and simple, one of a number of ways of delivering a service.

What the Supreme Court said about assessment

To be fair, the Supreme Court said a fair bit about how to assess eligible need:

• It set out the legal framework (paragraph 11ff);
• It affirmed that the statutory guidance ‘Prioritising Need in the Context of Putting People First’ gets the framework right (paragraph 16);
• It reaffirmed that once a local authority has determined eligible need, it must meet that need (paragraph 21);
• It decided not to revisit the case of Barry, which held that resources could taken into account during the assessment process (paragraph 43);
• It decided that the assessment of eligible need in KM’s case was not irrational (paragraph 38).

What the Supreme Court did not do is say anything new. It certainly said nothing that would turn a previously ineligible need into an eligible need. And therefore it said nothing that would turn someone who was previously ineligible into someone who is elible.

And therefore I am bemused by the Guardian headline, ‘Court ruling means thousands more disabled people could get access to care‘.

Where the RAS fits in: service delivery

Roughly, local authorities have three possible approaches to delivering the services to meet eligible need. One is to deliver it directly. One is to commission someone else to deliver it. And one is to allow the service user to commission services themselves.

It is here that the RAS fits in. Essentially, the RAS is a tool used in the process of converting eligible need into a cash value, so that the service can be delivered in cash instead of in kind.

Though this is hardly a secret, I am very cynical abut the RAS. Not only is it a tool used to convert eligible need into a cash value, but it is used to obscure the process. In theory, there is a scientific basis. The RAS uses an algorithm. According to that reputable source, Wikipedia,

“Algorithms are essential to the way computers process data. Many computer programs contain algorithms that detail the specific instructions a computer should perform (in a specific order) to carry out a specified task… Thus, an algorithm can be considered to be any sequence of operations that can be simulated by a Turing-complete system.”

Sounds scientific? But according to Luke Clements (2011) ‘A Sideways Look at Personalisation and Tightening Eligibility Criteria’ in Elder Law 1 pp47-52, along the way, “any science in the process is jettisoned in favour of witchcraft.” The computer does the sums, but what the end result has to do with the original assessment of need is anyone’s guess.

Remember, there are two other ways of delivering services. They can be delivered directly, in which case the local authority must have a fairly good idea how the service delivery meets the eligible need. Or the local authority can commission directly, in which case it will also know how much it costs to meet the eligible need.

It is ironically only when the service user is commissioning their own services that the algorithm – or witchcraft – which obscures the link between the eligible need and the cost of meeting it comes into its own.

Back to KM v Cambridgeshire

KM had his needs assessed. He was seeking direct payments to meet those needs. He has considerable disabilities. Cambridgeshire used the RAS, then another algorithm called the Upper Banding Calculator. Then it jiggled about with the figures a little bit more. Ultimately he was offered £85,000 per annum. But he thought he should get £157,000 per year.

That is a big difference. But was the dispute about what his needs were (i.e. the assessment), or was it about what it would cost to meet them (i.e. the service delivery)?

Here’s the simple answer: Cambridgeshire was so effective at obscuring its decision making process that KM couldn’t tell what the dispute was about. The Supreme Court criticizes Cambridgeshire for three things:

• Failing to be open about its assessment of the mother’s contribution to care (paragraph 30);
• Failing to be open about its rejection of the independent social worker’s assessment (paragraph 34); and
• Failing to explain how it arrived at its own sum (paragraph 35)

It would be correct to characterize this case as being ultimately about transparency and not about assessment or resources.

So is the case good news for service users at all?

A brief history of transparency

Having dismissed the notion that thousands will become eligible, having highlighted that the case says nothing new about assessment, having said ultimately it was just about transparency, is it just a storm in a teacup?

No! It is well worth remembering where we were at before:

In Savva, R (on the application of) v Royal Borough of Kensington and Chelsea [2010] EWHC 414 (Admin) (11 March 2010), the high court upheld the principle of transparency:

“without being able to properly understand the use made of the RAS, the service user and anyone acting on her behalf, is left totally in the dark as to whether the monetary value… is adequate to meet the assessed need… The process of conversion made by the Panel is not explained to the service user. It should have been underpinned by an evidential base, and it was not.”

And as I commented at the time,

“What is being said is that there is a duty to give effect to the rhetoric, and actually demonstrate how the cash payment is adequate to meet assessed need. If the duty to give reasons goes that far, it may help to ensure that the cash payments actually do link to assessed need. Which in turn may undermine the approach of ‘Points mean Prizes’, and defer the day when a computer programme completely replaces the social worker.”

The judgements in KM’s case in both the High Court and the Court of Appeal below were bad news for transparency, and therefore bad news for anyone like me who wants a link between the cost of meeting need and the value of the cash payment. In KM, R (on the application of) v Cambridgeshire County Council [2010] EWHC 3065 (Admin) (26 November 2010), the Court said this:

“[The Claimant] criticises the Defendant for failing to provide an explanation setting out the services required to meet the Claimant’s needs. That appears to me to be a complete misunderstanding of the system of self-directed support. Both the RAS and the Upper Banding Calculator, compared as they were with the assessment and operated using the skill and experience of social workers, were assessment of needs and not services but the RAS was a tool for translating needs into a sum which was adequate to provide the services for those needs by reference to the average costs of the provision by the authority of meeting those needs for other disabled people.”

Upholding this decision last year, in KM, R (on the application of) v Cambridgeshire County Council [2011] EWCA Civ 682 (09 June 2011), the Court of Appeal observed that, “There does not need to be a finite absolute mathematical link” between payment and need.

In short, the history of this case is a history of judicial approval of algorithms and witchcraft, of obfuscation and lack of transparency. The beauty of today’s ruling, the reason I can consider it a victory, is that it reaffirms Savva on the need for transparency. Particularly poignant is the observation in paragraph 36:

“that a local authority’s failure to meet eligible needs may prove to be far less visible in circumstances in which it has provided the service-user with a global sum of money than in those in which it has provided him with services in kind. That point fortifies the need for close scrutiny of the lawfulness of a monetary offer.”

Or to put it another way, it is concerning that it is too easy to use direct payments to obscure potentially unlawful cuts that would be quite obvious if they were delivered or commissioned directly.

The RAS should still go!

The RAS has survived another level of challenge, see paragraph 26. But I still think it should go.

The argument in defence of the RAS in paragraph 24 of the judgement is:

“To set about costing each of the services identified in answer to the question at the [eligible need] stage upon, as it were, a blank sheet of paper would be unacceptably laborious and expensive. So a mechanism has been devised in order to give the exercise a kick-start. It is called a Resource Allocation System (a “RAS”); and many authorities, including Cambridgeshire, have developed one for their own use.”

I am resolutely unconvinced. If we can cost the services to meet the needs on a blank sheet of paper when we need to commission them, then we can cost them on a blank sheet of paper when the service user is going to commission them.

If the RAS is only “the generator of a “ball-park” figure, subject to adjustment up or down” (paragraph 26), then it is a wholly unnecessary extra step rather than a kick start to the calculation.

This is the heart of my concern. Arriving at a cash value of need by generating the starting figure by computer and the final figure by magic is not the most simple way of doing it, it is the most complicated. @TheSmallPlaces has shown in a series of blogs how local authorities actually value the complexity of the process:

• How ‘transparent’ are personal budgets?
• Relaaaaaaax, just have (blind) faith in your RAS
• Hi Ho, Hi Ho, off to the ICO we go… (more on RASs and transparency)

In this, the Supreme Court got it wrong. It was right to approve clear and transparent reasons. It was wrong to approve the RAS as simplifying the process. The RAS is the very antithesis of clear and transparent reasons. In this case, it helped to obscure not only the reason for the sum itself, but also disputes about the assessment. It should go.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers.