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This case is of enormous significance to those who work in social welfare and community care. It will be heard by a seven judge court on 7 and 8 February 2012. Amongst other things it will give the court the opportunity to retread some of the same ground that it covered only six months ago in R (McDonald) v Kensington and Chelsea LBC [2011] 4 All ER 881. One of the particular features of that case was the serious criticism which some of the members of the court directed at Baroness Hale (see for example “I totally disagree with, and deplore, Lady Hale’s suggestion . . .” from Lord Walker at [32]). KM will see exactly the same court again, plus Lord Phillips and Lord Wilson. Many will be watching to see whether temperatures remain high.

The key question is whether and if so to what extent resources can be taken into account by local authorities when they are deciding whether to provide for community care needs. Those needs may cut right to the heart of human dignity. In McDonald the issue was whether a former prima ballerina, who was not incontinent, could nevertheless be issued with incontinence pads as an appropriate response to her overnight toileting needs. It is easy to see why the decision that she could has proved controversial in many circles (incidentally, for the best thing written on this, see Richard Gordon QC’s Counting the votes: a brief look at McDonald (2011) 14 CCLR 337).  The court in McDonald wondered whether they should have been invited to return to the source of the problem, which is R v Gloucestershire CC ex p Barry [1997] AC 584. That is the decision, controversial at the time and distinguished in a number of subsequent cases, which holds that resources can be taken into account. KM is where this will now be decided.

However, and importantly, even if Barry survives, there is a critical second issue. At the moment, and as a result of the Government’s “personalisation” agenda in social welfare (which means, in essence, encouraging people to take a cash sum and determine and buy their own care services rather than having local authorities provide directly), many local authorities convert assessed needs into money and therefore services by use of something called a Resource Allocation Scheme (RAS). The idea is that a RAS properly reflects the local cost of services. They have however proved extremely controversial. A RAS is for the most part an algorithm, and many authorities have proved unwilling to explain how they work. Indeed, some authorities appear not to know (for an insight into these problems see blogs such as this one).

There is a need, in law, to provide some of the reasons behind a RAS, and they can only ever be a starting point or indicator: see R (Savva) v Kensington and Chelsea [2010] EWCA Civ 1209. The secondary issue in KM is whether that goes far enough. Thus, even assuming resources are relevant, how transparent must be the calculation by which they are taken into account?

Whatever KM decides it is going to have massive implications for all those dependant upon local authority community care services. It may have slightly less personal interest than McDonald but its impact will be much greater.

Nick Armstrong is a barrister at Matrix Chambers.