PQ, RECLAIMING MOTION BY, AS ATTORNEY OF MRS Q AGAINST GLASGOW CITY COUNCIL [2018] ScotCS CSIH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PQ, RECLAIMING MOTION BY, AS ATTORNEY OF MRS Q AGAINST GLASGOW CITY COUNCIL [2018] ScotCS CSIH_5 (17 January 2018) URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSIH_5.html Cite as: 2018 SCLR 515, 2018 GWD 4-71, [2018] ScotCS CSIH_5, [2018] CSIH 5, 2018 SLT 151

Petitioner and reclaimer: Mitchell QC, Crawford; Drummond Miller LLP

Respondent: Poole QC, Roxburgh; Glasgow City Council (Corporate Services)

[1] In terms of section 12 of the Social Work (Scotland) Act 1968 it is the duty of every

local authority to promote social welfare by making available certain things, including

assistance in kind or in cash, to relevant persons. These things are referred to in the Act as

“community care services”: 1968 Act section 12A (8). As might be anticipated, community

care services include services which may be necessary to assist a person with any aspects of

day-to-day living which that person, by reason of age, ill-health or other disability, is unable

to carry out unaided. Provision is made in section 12A of the 1968 Act for the assessment by

local authorities of a person’s need for community care services.

[2] Mrs Q is a person who, it is agreed, has a need for community care services. She is

an 87-year-old widow who lives in Glasgow. She is in poor health. She suffers from

peripheral vascular disease and vascular dementia. On 17 May 2010 she underwent a below

knee amputation in one leg. The petitioner in this application for judicial review, and now

reclaimer, is her son, PQ, who holds power of attorney in respect of Mrs Q by virtue of a

grant by her dated 17 February 2010 and registered in the Books of Council and Session on

9 March 2010. Glasgow City Council, the respondent in this application and now

respondent in this reclaiming motion, is the local authority having statutory powers and

duties in relation to the provision of community care services to Mrs Q. It is the contention

of the petitioner that the respondent has failed properly to exercise its powers and therefore

has failed to fulfil its statutory duties towards Mrs Q. This reclaiming motion is in respect of

an interlocutor of the Lord Ordinary dated 5 October 2016 in the second of two petitions

presented by the petitioner (the “Second Petition”) refusing the orders sought and

[3] The Second Petition challenges the lawfulness of decisions relating to the provision

of community care services to Mrs Q which decisions were intimated to the petitioner by

letter from the respondent dated 26 May 2015. As appears from the averments in the

petition, there is a preceding history, extending over some five years, including a hearing

before the respondent’s Social Work Complaints Review Committee on 23 January 2015, but

for present purposes it is sufficient to note that by the early part of 2010 Mrs Q was living at

home with domiciliary support organised through the respondent’s social work department.

As she was finding it increasingly difficult to cope, the respondent commissioned an

assessment of her care needs. That assessment is contained in a report dated 19 March 2010.

“now requires 24 hour care to reduce the risk of falling and ensure that she receives

an appropriate level of care. She is currently supported overnight by care purchased

privately. This cannot be sustained indefinitely due to financial implications and

Mrs Q was admitted to Glenlivet nursing home on 28 April 2010. As a result of the

deterioration in her vascular problems Mrs Q was admitted to hospital where she

underwent the below knee amputation to which we have already referred. She returned to

the nursing home on 24 June 2010. She thereafter went back to her own home, for what was

intended to be a short break, on 25 July 2010. She has continued to reside there ever since.

[4] Shortly after Mrs Q’s return home the respondent carried out a further assessment of

her needs, in terms of section 12A of the 1968 Act. The report on that assessment was dated

26 August 2010 and 23 September 2010. Thereafter, the petitioner applied on Mrs Q’s behalf

for a direct payment for the purpose of securing the relevant community care services, as

was then provided for by section 12B of the 1968 Act. The respondent has subsequently

been made direct payments, although, as is observed by the Lord Ordinary, it is not clear

from the petition and answers when payments commenced. What is not in dispute is that

up to 1 November 2012 weekly direct payments of £594.70 were made to the petitioner.

Following a review, these payments were reduced to £493.36 per week. The difference

represents the assessed client contribution which initially had been waived on a

discretionary basis but which was deducted from the direct payment from 1 November

[5] That position, as we understand it, has subsisted since 2010: Mrs Q being cared for at

home under arrangements made on her behalf by the petitioner, with the cost of these

arrangements being funded, in part, by direct payments made by the respondent. We note

what the Lord Ordinary has to say about these arrangements in paragraph [18] of his

opinion. In his view there is no doubt that Mrs Q is exceptionally well cared for. The

Lord Ordinary explains that Mrs Q lives in a one-bedroom bungalow which has been

adapted to take a wheelchair. There is a wet room for her washing and toileting needs

where she can be discreetly observed. There is a carer on hand 24 hours a day who is not

distracted by other clients or patients. During the night the carer sleeps in a pull-down bed

in the living room. Mrs Q is happy, content and safe. She is recorded as not wishing to

move from her home. It is the wish of the petitioner that his mother continues to enjoy her

current high level of care. It is his position that because Mrs Q is constantly at risk of falling

she requires to be cared for at home with 24 hour care on a one-to-one basis. Because of her

dementia Mrs Q forgets that she has had a leg amputated. Accordingly, when she rises to

get to her feet she fails to take account of that fact and is prone to falling and injuring herself.

She may also try and rise from bed and again is then at risk of falling. No nursing home, the

petitioner suggests, will provide the kind of 24 hour one-to-one care that is required and

accordingly Mrs Q can only be cared for in a home setting with a nurse or carer with her

24 hours a day. The petitioner takes issue with the respondent’s assessment that Mrs Q’s

needs could be adequately met within a nursing home and accordingly at a lesser cost than

that required to provide 24 hour one-to-one care at home. That is the nub of the dispute

between the parties which the petitioner has brought to court by way of the Second Petition.

[6] In terms of section 12A of the 1968 Act, where a local authority is under a duty or has

a power to provide community care services to any person, it is under a duty to make an

assessment of the relevant needs of that person. The duty is expressed in the following

(1) Subject to the provisions of this section, where it appears to a local authority that

any person for whom they are under a duty or have a power to provide, or to secure

the provision of, community care services may be in need of any such services, the

(a) shall make an assessment of the needs of that person for those services; and

(b) shall then decide, having regard to the results of that assessment, and taking

(i) where it appears to them that a person (“the carer”) provides a

substantial amount of care on a regular basis for that person, of such

(ii) in so far as it is reasonable and practicable to do so, both of the

views of the person whose needs are being assessed and of the views

of the carer (provided that, in either case, there is a wish, or as the case

whether the needs of the person being assessed call for the provision of any

[7] It will be recollected that a local authority is empowered to provide community care

services in kind or in cash. Thus, in the event of a local authority determining that the needs

of a person call for particular services these may be provided for by way of payment of a

sum of money in such an amount as will secure these services. As we have already

foreshadowed, this is further regulated by statute. As was explained by Lord Jones in

Smart’s Guardian v Fife Council 2016 SLT 384 at para 3, until the repeal of section 12B(1) of the

1968 Act on 1 April 2014, if a local authority decided that the needs of the person called for

the provision of a community care service, and if the person was not of a description

specified in regulations, the local authority had a duty under that section to make to the

person, “in respect of his securing the provision of the service, a payment of such amount…

as they determine to be appropriate”. From 1 April 2014, the duty under section 12B has

been replaced by the duty, under section 5 of the Social Care (Self-Directed Support)

(Scotland) Act 2013, to offer to such person the choice of a number of funding options, one of

which is the making of such a payment. The options, described as “options for self-directed

(1) This section applies where a local authority decides under section 12A(1) (b) of

the 1968 Act that the needs of an adult (the “supported person”) call for the

(2) The authority must give the supported person the opportunity to choose one of

the options for self-directed support unless the authority considers that the

supported person is ineligible to receive direct payments. …”

The options referred to in section 5(2) are those set out in section 4(1). Option 1 is the

making of a direct payment by the local authority to the supported person for the provision

of support. As appears from section 4(2), “direct payment” means a payment of the relevant

amount by a local authority to a supported person for the purpose of enabling the person to

arrange for the provision of support by any person (including the authority). The “relevant

amount” means the amount that the local authority considers is a reasonable estimate of the

cost of securing the provision of support for the supported person.

[9] The petitioner challenges the lawfulness of two decisions taken by officers of the

respondent acting under delegation of the respondent’s statutory powers both of which

were intimated to the petitioner by the letter of 26 May 2015 (47 in the joint list of

documents) and which relate to the assessment of the level of Mrs Q’s needs and the

calculation of the direct payment consequential on that assessment. The first of these

decisions was made in terms of section 12A (1) of the 1968 Act which required the

respondent to make an assessment of Mrs Q’s needs. It is set out in a 20 page pro forma

document headed Support Needs Assessment and completed by a social worker, Ms G (45

in the joint list). The second decision was the determination of the “relevant amount”, being

the amount that the respondent considered a reasonable estimate of the cost of securing the

provision of the community care services which were called for having regard to the

Support Needs Assessment, as required by sections 4 and 5 of the 2013 Act. It is set out in a

three page pro forma document headed Resource Allocation Group Minute and completed

by Mr M (46 in the joint list). The result of the second decision was to authorise a direct

payment of £31,009.44 per annum (effectively the same rate as had applied before the

Support Needs Assessment was carried out). We shall refer to the second decision as the

[10] The petitioner reclaims against the Lord Ordinary’s dismissal of the Second Petition.

[11] In terms of Rule of Court 38.13(2)(a), a party wishing to reclaim must lodge, by a date

which conforms with the timetable issued by the Keeper of the Rolls, grounds of appeal. In

terms of Rule of Court 38.13(2)(c) that party must lodge, by a later date again conforming to

the timetable issued by the Keeper, a note of argument. These documents have different

functions. As is provided by Rule of Court 38.18(1), grounds of appeal shall consist of brief

specific numbered propositions stating the grounds on which it is proposed to submit that

the reclaiming motion should be granted. “Brief” means brief and “specific” means specific.

In this context a proposition is a statement containing a premise which the reclaimer

proposes to make out and which, if made out to the satisfaction of the court, will, according

to the reclaimer, have the necessary result that the reclaiming motion should be granted.

The purpose of grounds of appeal is to give notice to the parties and to the court of the

grounds on which the reclaiming motion is to be argued: Eurocopy Rentals Ltd v Tayside

Health Board 1996 SC 410, Lord President Hope at 413G. The note of argument, on the other

hand, is intended to provide an outline of the argument which is to be advanced in support

of the grounds of appeal in the form of a concise summary of the submissions to be

developed, set out as a numbered list of the points which the party wishes to make under

reference to the passages of evidence, documents and authorities on which a party wishes to

rely: Practice Note 3 of 2011, paragraph 86. The note of argument will therefore be more

expansive than the grounds of appeal although, again, regard must be had to the terms of

[12] We have been prompted to make these observations, which are really no more than a

restatement of the relevant provisions in the Rules of Court and the Practice Note, by reason

of the terms of the grounds of appeal in the present case. In so far as they relate to the

Second Petition they extend over some eight pages. Some of what appears there would be

more appropriate for the note of argument; some of it is simply discursive. By adopting this

approach to drafting, a reclaimer risks obscuring what his case is about, which is the very

antithesis of the purpose of grounds of appeal. Mr Mitchell QC, who appeared for the

reclaimer, accepted that Rule of Court 38.18 (1) had not been scrupulously followed but he

pointed out that there can be found in the present grounds of appeal, albeit amidst much

else, two propositions which can be taken as encapsulating the grounds which the reclaimer

(First) The Lord Ordinary erred in his finding that [the Support Needs Assessment]

(Second) The Lord Ordinary erred in his finding that there was a proper and rational

basis for [the Calculation of Direct Payment] being made by the respondent to Mrs Q

We shall proceed on the basis that these are the grounds to be considered.

[13] The respondent had a statutory responsibility to make the Support Needs

Assessment. It required an investigation of primary facts and then an evaluation of these

facts using professional judgement. At paragraphs [16] and [17] of his opinion the

Lord Ordinary recalled a number of fundamental principles which guide the court in the

judicial review of such decisions. We respectfully agree with and would adopt the way in

“[16] …First it is not for the court to take a decision which Parliament has

empowered to a local authority. It is only if the local authority has acted outwith its

powers, failed to take into account a relevant matter, omitted to take into account a

relevant matter or the decision was Wednesbury unreasonable that the court can

intervene. Even if there has been an error in law it will be for the local authority to

remake the decision, possibly under the guidance of the court, not for the court to

[17] Secondly local authorities have finite resources and the court has to recognise

that it is for the local authority to determine where resources should be spent and in

what manner. In R(G) v Barnet LBC [2004] 2 AC 208 Lord Nicholls of Birkenhead

drew a distinction between a local authority exercising a power and one exercising a

duty. A local authority is obliged to comply with a statutory duty regardless of

whether, left to itself, it would prefer to spend its money on some other purpose. A

power need not be exercised but a duty must be discharged (para 12). The extent to

which a duty precludes a local authority from ordering expenditure priorities for

itself varies from one duty to the other. This is especially so in the field of social

“As a general proposition the more specific and precise the duty the more

readily the statute may be interpreted as imposing an obligation of an

absolute character. Conversely, the broader and more general the terms of

the duty, the more readily the statute may be construed as affording scope for

a local authority to take into account matters such as cost when deciding how

Thirdly courts require to exercise particular care in construing reasoned decisions

which are not drafted by lawyers and read them in the context within which they are

made. In the case of assessments the observations of Lord Dyson JSC in

R(Macdonald) v Kensington and Chelsea Royal London Borough Council [2011] UKSC 33,

“In construing assessments and care plan reviews, it should not be

overlooked that these are documents that are usually drafted by social

workers. They are not drafted by lawyers, nor should they be. They should

be construed in a practical way against the factual background in which they

are written with the aim of seeking to discover the substance of their true

[14] Consistent with the first of these principles, Mr Mitchell accepted that in order to

establish that the respondent had failed in its statutory duty to make an assessment of

Mrs Q’s needs for community care services, he had to show that the conclusion of the

Support Needs Assessment was perverse. However, notwithstanding that necessary

concession, in paragraphs 2.3 to 2.6 of the grounds of appeal and paragraphs 4 to 19 of the

note of argument for the reclaimer, there is set out the contention that the Lord Ordinary

should be taken to have erred because he was misled as to the qualifications of the author of

the Support Needs Assessment and that therefore his decision should be reversed.

[15] As already indicated, the author of the Support Needs Assessment was Ms G. She is

the assessor for the purpose of the pro forma. Ms G is a social worker employed by the

respondent. However, she has also qualified as a nurse. In the course of the Support Needs

Assessment she identifies her experience “both as a nurse and as a social worker” and

“when working as a nurse and while working as a social worker”. There was reference to

this before the Lord Ordinary. At paragraph [19] of the Lord Ordinary’s opinion he states in

relation to the Support Needs Assessment, “It was carried out by an experienced social

worker who, I was informed, is also qualified as a nurse”. That Ms G qualified as a

registered nurse and thereafter worked as a nurse is accurate. The point which is sought to

be made on behalf of the reclaimer is that in 1999 Ms G allowed her registration with the

Nursing and Midwifery Council to lapse. While accepting that what the Lord Ordinary was

told was not untrue, at paragraph 13 of the note of argument for the reclaimer it is stated

that to describe Ms Grant as “also qualified as a nurse” was highly misleading and likely to

lead to a false understanding on the part of the Lord Ordinary that Ms G was a nurse and

entitled to practise as such. At paragraph 14 it is submitted that the Lord Ordinary

proceeded on the basis of a material error of fact and at paragraph 17 it is submitted that it is

in the interests of justice to interfere with the Lord Ordinary’s decision on the basis of what

is now known to be the correct information about the status of Ms G.

[16] We did not encourage Mr Mitchell to develop these submissions at any length. We

consider them to be wholly without merit. The currency of Ms G’s registration is of no

obvious relevance, it being borne in mind that while Ms G was the assessor she was assisted

by an occupational therapist and by a district nurse and, moreover, that she is a social

worker. Further, we see no basis for the suggestion that the Lord Ordinary had been misled.

The terms of paragraph [19] of his opinion indicate that he was aware that Ms G was a social

worker who had “also qualified as a nurse”, as indeed she had. That is the meaning we

would take from the expression in the Support Needs Assessment “when working as a

nurse [past tense] and while working as a social worker [present tense]”. However, a more

fundamental objection to the relevancy of an argument to the effect that “had the

Lord Ordinary been aware that the social worker carrying out the assessment was not

qualified as a nurse, it may reasonably be inferred that it would have changed the view to

which he came on the reasonableness of the Assessment made by [Ms G] in reliance upon

her own judgement, contradicted as it was by the other professionals all of whom possessed

relevant nursing qualifications and expertise”, is that it was not the Lord Ordinary’s

function to weigh the opinion of Ms G (or indeed that of the occupational therapist and

district nurse) against the opinions expressed in the reports of Grace Consulting,

Sally Ann Dickinson and Professor Lynn Kilbride, which were relied on by the reclaimer.

Rather, his function was, and our function is, to consider the contention that there was no

rational basis for Ms G’s opinion as expressed in the Support Needs Assessment that while

Mrs Q required 24 hour supervision due to her risk of falls, her needs could be met within a

residential setting without the necessity for one-to-one care. While this is a reclaiming

motion against the decision of the Lord Ordinary, the focus of challenge remains the

decisions which the petitioner seeks to review. Were we persuaded that the Lord Ordinary

had been misled on some material matter of fact with the result his decision could be

impugned for that reason (which we are not), that of itself would not lead to the reclaiming

motion being granted. As Mr Mitchell accepted, for the petitioner to succeed it would

remain necessary that he demonstrate to this court that the decision that Mrs Q’s needs

[17] The note of argument for the reclaimer also attacks the Lord Ordinary’s decision on

the ground that he erred in law in finding that there was a basis for Ms G’s assessment in the

matters referred to at paragraph [37] of his Opinion. These matters, so it is said in the note

of argument, had not been addressed by either counsel and had not been the subject of any

submissions. There was no sufficient basis, the note of argument continues, for the

[18] The way in which this is couched again, inappositely in our opinion, focuses on the

Lord Ordinary’s decision rather than the respondent’s decisions, but in any event we do not

see this criticism as being well made. Two paragraphs of the Lord Ordinary’s Opinion are

“[37] Although neither counsel addressed me on this it is apparent that the

assessor, with input from the occupational therapist, had suggested a number of

measures that could be put in place to reduce the level of risk from falling. These

included visual prompts to remind Mrs Q not to attempt to get up without

assistance. These were rejected by the family on the basis that Mrs Q would not

understand them. The assessor and the occupational therapist noted that Mrs Q was

able to read and do cross words and considered that she might well be able to

understand them. They had suggested a cognitive assessment but this was rejected

by the family on the basis that her cognitive ability had deteriorated since the last

assessment and there was nothing to be gained from a further assessment. The

assessment noted that the carers put a small table with items on it in front of Mrs Q

and they used the sound of it moving when they were away from her to alert them to

the fact that Mrs Q was attempting to get up. During the night they used a baby

alarm to alert them to Mrs Q moving. There was [a] bed guard to prevent her from

[38] There was therefore a basis for the assessor to reject the petitioner’s expert

evidence and to rely on her own judgement assisted by colleagues. It appears that

this is a careful assessment of this elderly lady’s needs in which the assessor and

those assisting her brought their own experience and expertise to bear on the subject.

They conclude that Mrs Q requires 24 hour supervision but they considered that that

level of care could be provided in an appropriate residential setting.”

The information referred to by the Lord Ordinary appears in the Support Needs

Assessment. The Lord Ordinary had been invited to find that the decision expressed in the

Support Needs Assessment had no rational basis. He was therefore entitled, if not obliged,

to have regard to its whole terms when considering the petitioner’s submission, even where,

as the Lord Ordinary acknowledges, counsel had not focused on everything that appeared

there. What appears in paragraphs [37] and [38] of the Lord Ordinary’s Opinion provides

an entirely relevant reminder that there are strategies which may be useful in minimising

the risk of a cognitively and physically impaired person falling and which do not require the

constant and immediate presence of a carer. In the present context it is not for the court to

evaluate such strategies but then the Lord Ordinary did not do so. It can also be noted that

earlier in his Opinion (paragraph [30]) the Lord Ordinary recorded that Ms G and the

occupational therapist had worked with service users with similar needs to Mrs Q whose

needs were met within a 24 hour care setting (such as a nursing home – see page 6 of the

Support Needs Assessment). Ms G was entitled to draw on such experience in making her

[19] We turn then to the contention that the decision expressed in the Support Needs

Assessment was perverse. Ms Poole QC for the respondent submitted that the petitioner’s

contention, although articulated as a rationality challenge, was truly no more than a merits

challenge, in other words an argument to the effect that on the facts a different judgement

should have been made as to the nature and extent of the services which Mrs Q’s needs call

for; that, Ms Poole submitted, is not a question for the court. We agree.

[20] We reiterate that in discharging its section 12A duty the respondent was required to

exercise a judgement, or perhaps two judgements; it had to make an assessment of “needs”

and it had to decide whether the needs “call for” the provision of community care services.

As we would see it, implicit in the duty to decide whether in any particular case the needs

which have been assessed call for the provision of community care services is a duty to

decide what is the nature and extent of the community care services which are called for.

That would seem to be supported by what appears in paragraph 23 of the judgment of

Lord Wilson, with which the other members of the Supreme Court agreed, in R (KM) v

Cambridgeshire County Council [2012] UKSC 23, [2012] PTSR 1189, a decision commended by

the reclaimer as setting out (in paragraphs 23 ,23 to 26) the proper approach to the

calculation of payments such as the direct payments provided for in terms of sections 4

and 5 of the 2013 Act. The reclaimer in his note of argument points to the divergence of

opinion as between Lord Lloyd of Berwick and Lord Clyde in R v Gloucestershire CC ex p

Barry [1997] AC 584 as to the disjunction or otherwise as between needs and the resources

available to meet them. Lord Lloyd could not accept that assessing the reasonable needs of

the individual required consideration of the local authority’s ability to meet those needs

(at 600B). Lord Clyde, on the other hand, while finding it unnecessary to hold that cost and

resources are always an element in determining necessity, took the view that they may be a

proper consideration (at 611B). Although Lord Clyde was part of the majority of the

Appellate Committee in Barry, Lord Hardie subsequently took a position more consistent

with that of Lord Lloyd in concluding, in the specific context of the duty imposed by

section 12A(1) of the 1968 Act, that the resources available to a local authority are irrelevant

to the exercise of assessing an individual’s needs: MacGregor v South Lanarkshire Council 2001

SC 502. Having drawn attention to these decisions on the possible relationship between

needs and resources, the reclaimer’s note of argument goes on to explain that this is not a

live issue in the present case. We can agree with that, but before leaving Barry we would

note Lord Clyde’s observation at 610E that “needs” is a relative expression admitting a

considerable range of meaning. Lord Clyde was considering the construction of “needs” in

the context of section 2(1) of the Chronically Sick and Disabled Persons Act 1970 but his

[21] If then the Support Needs Assessment involved the making of judgements which

were for the respondent, through its officers, to make, on what basis can it be said that its

[22] It is no longer argued on behalf of the petitioner and now reclaimer that the

respondent failed to have regard to relevant evidence when making the Support Needs

Assessment. Such an argument had been advanced before the Lord Ordinary and rejected

by him, in our opinion correctly. The Lord Ordinary also rejected arguments based on

textual analysis of the Support Needs Assessment. Again we consider that he was right to

do so. The Support Needs Assessment is not a conveyancing document nor a judicial

opinion. It was drafted by a social worker not a lawyer and, as was said by Lord Dyson in

Macdonald, it should accordingly be construed in a practical way against the factual

background in which it was written with the aim of seeking to discover the substance of its

true meaning. Read in that way we consider its meaning to be clear with none of the

inconsistencies or irrelevancies which Mr Mitchell had sought to attribute to it when

appearing before the Lord Ordinary. What remains is the contention that no rational

decision-maker could conclude, on the basis of the material referred to in the Support Needs

Assessment, that Mrs Q’s admitted need for 24 hour care could be met in a residential

setting which did not provide for one-to-one supervision and attention. That contention

depends on the fact that because of her cognitive impairment Mrs Q forgets that she has had

an amputation and therefore cannot stand unaided, and is therefore liable to fall as she

attempts to rise from a chair or bed, and on the opinions expressed in the expert reports

from Grace Consulting dated 18 June 2013; Sally-Ann Dickinson, a registered general nurse

with expertise in, amongst others, care of the elderly, dated 12 January 2015; and

Professor Lynn Kilbride, Head of the Department of Nursing and Community Health at

Glasgow Caledonian University dated 13 January 2015. That Mrs Q’s combination of

impairments puts her at particular risk of falling and the opinions expressed in the expert

reports relied on by the reclaimer may provide support for the proposition that Mrs Q’s

needs call for one-to-one care, but it does not follow that the respondent’s assessment which

concludes that these needs call for a less intensive degree of care is irrational or perverse.

The Support Needs Assessment was carried out by a social worker assisted by an

occupational therapist and a district nurse. On the basis of their consideration of what is the

relevant material they came to a different conclusion from that expressed in the reports

relied on by the reclaimer. That is a difference of opinion on a question of judgement which

by its nature may admit of more than one answer. It does not demonstrate perversity. We

The Second Ground of Appeal – the Calculation of Direct Payment

[23] The second decision which is challenged by the petitioner and now reclaimer is the

Calculation of Direct Payment. As is explained above, the Calculation of Direct Payment is

the respondent’s determination of the amount that it considered to be a reasonable estimate

of the cost of securing the provision of the community care services which were called for

[24] The operative part of the Calculation of Direct Payment, as set out in 47 in the joint

The social work assessment is clear that [Mrs Q’s] needs could be met within a

24 hour care home setting however as [Mrs Q] and her family wish to maintain her

within her own home, then supports should be provided to facilitate part of this care.

There is no significant risk with the current plan, however, if there were changes in

these arrangements, then need would require to be reviewed. It is not assessed by

the social worker that [Mrs Q] does require 1:1 support as there are incidences [sic]

[Estimated Budget] calculated from [Support Needs Assessment] £27,553.34

As current plan, with additional private support is meeting [Mrs Q’s] needs, with the

assumption that [Mrs Q] or [her attorney], if active, have considered any associated

This will ensure continuity for [Mrs Q] and maintain current plan.

If [Mrs Q] was to move into a nursing home the cost would be £30,451.51”

[25] What appears on the face of the Support Needs Assessment is supplemented by the

respondent’s averments in answer 14 to the petition as follows:

“[The respondent] also carried out the 2015 assessment. It found an eligible need for

24 hour care. It found that need could be met in a nursing home. It followed its

standard procedures in reaching a decision as to the level of direct payment to make

consequent on the 2015 assessment. It applied its resource allocation tool, which

seeks to provide a fair, equitable and transparent allocation of resources between all

services users, in order to reach an estimated budget. It noted that estimated budget

on page 19 of 20 of the 2015 Assessment, which was £27,553.34 per annum. The

agreed estimated budget was determined at a Resource Allocation Group (“RAG”)

on 5th May, 2015, having regard to the 2015 Assessment. The RAG approved an

agreed estimated budget of £31,009.44 a year (only part of which was a recurring

cost), which was a budget of £594.70 a week. The sums approved exceeded the

estimated budget reached under the resource allocation tool. The RAG noted that if

Mrs Q was to move into a nursing home (where 24 hour care is available) the cost

would be £30,451.51 a year. Telecare services were approved. An Outcome Based

Support Plan (“OBSP”) was then prepared based on the agreed estimated budget.

The OBSP noted that of the agreed estimated budget £30,824.33 was a recurring cost.

The decision as to the actual individual budget was taken in the OBSP on 12th June,

2015 by approval being given to an individual budget of £30,824.33. By a finance

enquiry form dated 27th July, 2015 the finance officer, applying “[The respondent’s]

standard charging policy, determined a client contribution of £101.34 a week should

be implemented. Accordingly weekly direct payments of £493.36 a week are made to

the Petitioner. “[The respondent] is not required to pay for a more expensive

package of care (such as the cost of individual care in a house) when it has assessed

needs as being capable of being met by a less expensive alternative (such as

[26] The averments in the petition which support the proposition that the Calculation of

Direct Payment did not have a proper and rational basis are to be found in statement 28 of

the petition. There it is averred that Mrs Q’s assessed need for 24 hour care:

“…requires to be provided in such a manner as meets her particular needs …She is at

constant risk of falling and the 24 hour care requires to be at such a level as to control

that risk. It requires the nursing home to have staffing levels sufficient to address

and minimise that risk. …The respondent has not sought nor obtained any

indication of the likely cost of such care were it to be provided in a nursing home.

…In the event that such care could be provided, it would require exceptional staffing

levels in the nursing home and is likely to be more expensive than the home care

Put short, that is a reiteration of the contention that Mrs Q’s needs are highly special because

of the particular combination of physical and cognitive impairment from which she suffers

and the consequent constant risk of falling and the further contention that a Calculation of

Direct Payment arrived at by reference to the cost of a move into “a nursing home” is

inadequate and therefore irrational because that cost would not cover the exceptional

staffing levels required by Mrs Q’s special needs. On the petitioner’s approach what should

have been done was to match Mrs Q’s needs against the levels of care which particular

nursing homes were able to provide and then adopt the cost of the appropriate level of care

as the reasonable estimate of cost for the purposes of sections 4 and 5 of the 2013 Act. Before

us Mr Mitchell referred to such an exercise as “bench-marking”. A further argument was

advanced before the Lord Ordinary (see Opinion paragraphs [54] and [55]) to the effect that,

as appeared from answer 14, the respondent had purported to use a resource allocation

score but there were no relevant averments and no evidence as to what that score, or the tool

to determine it, in fact were. That further argument is not foreshadowed in the copy of the

Reclaiming Print with which we were provided. We take it that the Reclaiming Print

incorporates the petition and answers as they were provided to the Lord Ordinary because

at paragraph [54] of his Opinion he describes the further argument as not focussed in the

petition. It is however explained in the grounds of appeal that he was mistaken in this, in

that an adjustment had been made to the petition at a late stage prior to the hearing (but

presumably not included in the version of the pleadings made available to the

Lord Ordinary), which adjustment had included a call on the respondent to disclose what its

resource allocation tool was, upon what assumptions it was based, how it operates and how

[27] These arguments were maintained before this court, it being contended that the Lord

Ordinary had erred in rejecting them. We would summarise the submissions for the

reclaimer as follows. The Support Needs Assessment assesses Mrs Q as having a need for 24

hour care. Among the desired outcomes of the Support Needs Assessment, under the

heading “staying safe”, are “To remain safe at all times” and “[Mrs Q] to be supported in

any environment to ensure her health and wellbeing and that her risk of falling are reduced

as far as possible”. In making the Calculation of Direct Payment it was the duty of the

respondent to make a reasonable estimate of the cost of the services required to meet

Mrs Q’s needs and to achieve the identified desired outcomes. While the estimate was for

the respondent to make, it had to be made on a rational basis. Associated with the duty to

make a rational assessment and arising from it was an onus on the respondent to

demonstrate, in a way that was transparent, that there was a proper and rational basis for

the amount brought out by Calculation of Direct Payment. As was apparent from the

respondent’s failure to carry out any benchmarking exercise, an estimate by reference to the

cost of “a nursing home”, in the sense of simply any nursing home, was irrational.

Moreover, given the averments in answer 14 that a calculation had been made by the use of

a resource allocation tool, the nature of the operation of which was unexplained, the

respondent had failed to demonstrate, as it was for it to do, that there was a proper and

[28] Although articulated in terms of irrationality the second ground of appeal can be

said to focus on reasons; the sufficiency of the reasons that were given and the absence of

[29] We have no difficulty with the proposition that where a local authority has a duty to

make a reasonable estimate of the amount of money which is intended for the provision of

community care services, the estimate requires to be made on a rational basis which should

be amenable to explanation and, further, that this explanation should be provided to the

supported person. The reclaimer relied on what was said by Maurice Kay LJ, with whom

Longmore and Patten LJJ agreed, in R (Savva) v Royal Borough of Kensington and Chelsea

“In the present case, the Deputy Judge concluded that fairness required the provision

of reasons. He emphasised the consistent theme in the guidance emanating from the

Department of Health and the Association of Directors of Social Services – the need

for transparency in the decision-making process. In my judgment, he was right to do

so. When a local authority converts an established right – the provision of services to

meet an assessed eligible need – into a sum of money, the recipient is entitled to be

told how the sum has been calculated. … If a local authority were entitled to notify a

bald figure without any explanation, the recipient would have no means of satisfying

himself or herself that it was properly calculated. As the guidance from the

Association of Directors of Social Services puts it, explanations of decisions ‘make it

possible for people and families to challenge these decisions’. Or, to put it the other

way round, an absence of explanations may make it impossible to mount such a

challenge, whether by way of complaint or by way of litigation.”

We agree with that. It follows that there is an onus on the respondent to the extent of

providing, in a reasonably comprehensible way, an explanation of how it has calculated

what it would claim is a reasonable estimate of the cost of securing the provision of such

community care services as it considers are called for. Such an explanation may then be

challenged, either on the ground that its reasoning is insufficient or that the amount

calculated on the basis of that reasoning is not in fact a reasonable estimate. In the latter case

we would see the onus as being on the supported person to establish that the estimate is not

[30] Returning to the instant case, it is convenient first to address the argument that

because no explanation has been given about the respondent’s “resource allocation tool”, the

respondent has failed to provide an adequately reasoned estimate of cost. Were the

respondent’s estimate to depend on an application of its resource allocation tool we would

see force in that argument. Having read the judgments in Savva and KM, the members of

this court have some idea of what a resource allocation tool is (in this context a computer

programme designed to allocate numerical values to needs-based claims) and what it is

intended to achieve, but if we had been dependent on what appears in the Calculation of

Direct Payment and answer 14 we would have remained completely ignorant of the matter.

Essentially, that would have still have been the case even after we had read User Guidance

Carefirst RAS Calculator (61 in the joint list), a document lodged by the respondent with the

intention of explaining its system. It may be that, with an eye to other cases, the respondent

should give consideration to following the suggestion in paragraph 21 of Savva and

publishing on its website in a user-friendly format a description of its resource allocation

tool and an explanation of how it is used. However, be that as it may, in this case we do not

see the respondent’s estimate to depend on an application of the resource allocation tool.

Rather, as Ms Poole QC put it in submissions, having started on a resource allocation

exercise the respondent rejected that exercise in favour of a simple estimate of the cost of

services. The application of the resource allocation tool produced a figure which was lower

than the estimated cost of a nursing home but, more critically, the tool and the figure it

produced became irrelevant where it had not been used to provide a basis for the

respondent’s estimate. We accept that submission. Mr Mitchell for the reclaimer argued for

a reading of answer 14 which indicated that the estimate had been arrived at by applying a

discretionary uplift to the figure produced by application of the tool. That is not what the

[31] That leaves the argument that because Mrs Q’s needs were “highly unusual, even if

they were not unique”, as it is put in the reclaimer’s note of argument, an estimate which

proceeded on a broad estimate of what a care home might charge for 24 hour care with no

attempt to benchmark particular care homes or particular care regimes was so inadequate as

to be irrational. To an extent, that is to rerun the argument advanced as the first ground of

appeal. We have rejected that argument. We have accepted that the respondent was

entitled to conclude that Mrs Q’s needs were not so different from other elderly persons at

risk from falls, that while 24 hour care was called for, that could be provided in a care home

without one-to-one supervision and attention. Having concluded that Mrs Q’s needs could

be met in a care home without one-to-one care, the respondent arrived at the Calculation of

Direct Payment by reference to what is charged by providers for admission to residential

care. The Lord Ordinary considered that approach to be a reasonable one. As had been

submitted to him by Ms Poole, the respondent pays for a substantial number of its citizens

in care and may be expected to have a close and ongoing relationship with care providers

giving it an intimate knowledge of the cost of residential care in Glasgow and an ability

without too much difficulty to make a reasonable estimate of the cost of securing the

relevant services. We would agree with the Lord Ordinary. Mrs Q’s needs are of course

individual to her but, when listening to Mr Mitchell it did seem to us that he was in danger

of over-elaborating and unduly complicating the task of estimating the level of care which

these needs call for. We see it as important not to lose sight of what was required of the

respondent in making the Calculation of Direct Payment. As Ms Poole pointed out, where a

supported person has opted for a direct payment sections 4 and 5 of the 2013 Act require a

local authority to make payment of “the relevant amount”. It is the relevant amount which

was the subject of the Calculation of Direct Payment and which was advised to the

petitioner in terms of section 5 (4). As is provided by section 4 (2) of the 2013 Act, the

relevant amount is “the amount that the local authority considers a reasonable estimate of

the cost of securing the provision of support for the supported person”. What “the local

authority considers is a reasonable estimate” is just that. It is for the local authority and not

anyone else to make. It is an estimate rather than anything more precise, and while it must

be reasonable, as is very familiar, that is a concept which affords significant leeway to the

designated decision-maker. Here the respondent arrived at what it considered to be a

reasonable estimate of the cost of securing the relevant services for Mrs Q having regard to

the level of the cost charged by nursing homes within its local authority area for providing

equivalent services. We see it as having been fully entitled to do so. We reject the second

[32] We have not been persuaded that either of the decisions challenged by the petitioner

was irrational and therefore unlawful. We do not find the Lord Ordinary to have erred in

dismissing the Second Petition. We shall refuse the reclaiming motion.

Scottish Court of Session Decisions