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posted 1 Apr 1997 in Volume 2 Issue 4
Gloucestershire
The Final Judgment
Stephen Cragg, the Solicitor for the applicants in the Gloucestershire case and now a Barrister specialising in Community Care examines the final judgment in this important case
The House of Lords has finally given judgment in the case of R v Gloucestershire County Council ex p Barry [1997] 2WLR 459 and the result was an agonisingly close 3-2 decision in favour of the Council.
Readers will recall the facts of the case from a previous edition of ECA (Volume 2, Issue 1). In summary, Michael Barry was in receipt of home care services from the Council who decided in September 1994 that, because of government cuts, it would have to withdraw the services. About 1500 service users were similarly affected. The services were provided under section 2 of the Chronically Sick and Disabled Persons Act 1970 which requires local authorities to provide or make arrangements for certain services where it is satisfied that it is necessary to meet the needs of a disabled person to do so.
There being no explicit reference to the taking into account of a local authority's resources in making this decision, the Council argued through the courts that resources could implicitly be taken into account when assessing (or re-assessing) a persons needs for the purposes of section 2. Mr Barry argued that what was in issue in any such assessment was his personal needs only and as these had not changed it was therefore unlawful to withdraw the services.
As readers will know, in the Divisional Court in 1995 McCowan LJ commented that it was important for local authorities to be able to take into account the size of the cake to be able to decide their how best to cut it, and thus held that resources could be taken into account when assessing need. In 1996 however the Court of Appeal reversed this ruling (Ex p Barry [1996] 4 All ER 421), holding that indeed 'needs' were personal to the service user and could not therefore embrace the taking into account the providers resources.
The House of Lords held that in assessing or re-assessing a service users need for a service, the degree of that need and the necessity to make arrangements to meet it, a local authority had to balance the severity of the user's disabling condition against the cost of those arrangements and the availability of resources, which might, accordingly be a proper consideration. Thus the House of Lords re-instated the Divisional Court's order.
Although the case affirms now the practice that many councils have followed in the past, the case is remarkable for the dissenting judgment from Lord Lloyd, with whom Lord Steyn agreed. Lord Lloyd agreed with the Court of Appeal that in assessing need external factors should not be taken into account. He said that this would mean that needs could be assessed differently in different parts of the United Kingdom and "Parliament cannot have intended that the standards and expectations for measuring the needs of the disabled in Bermondsey should differ from those in Belgrave Square" (at page 468). He viewed the passing of the 1970 Act as "a noble aspiration" as needs were to be met regardless of resources. He absolved the respondent council of all blame for the situation and stated that "Having willed the end, Parliament must be asked to provide the means" (page 469).
Stirring though Lord Lloyd's words were, his was a minority judgment. The majority judgment was given by Lord Clyde, who found that:
"in determining the question whether in a given case the making of particular arrangements is necessary in order to meet the needs of a given individual it seems to me that a mere list of disabling conditions graded in order of severity will still leave unanswered the question at what level of disability is the stage of necessity reached. The determination of eligibility for the purposes of the statutory provision requires guidance not only on the assessment of the severity of the condition or the seriousness of the need but also on the level at which there is satisfaction of the necessity to make arrangements. In the framing of the criteria to be applied it seems to me that the severity of a condition may have to be matched against the availability of resources".
Although this formulation is to an extent difficult to follow, what is clear is the Lord Clyde (with whom the remaining two law lords agreed), is specifically sanctioning the use of eligibility criteria by local authorities for determining levels of need and who should receive services. However, councils should be warned: Lord Clyde does not go so far as to say that resources can and/or should always be taken into account. His judgment goes on to state:
"It is not necessary to hold that cost and resources are always an element in determining the necessity. It is enough for the purposes of the present case to recognise that they may be a proper consideration. I have not been persuaded that they must always and necessarily be excluded from consideration".
Local authorities, then will not be wrong to adopt eligibility criteria and it will not always be wrong to take resources into account when assessing needs.
The result is bitterly disappointing for those groups of and for disabled people who came so close to establishing a special position for the 1970 Act in the list of community care services. However, it is clear from the judgments that the resources of a local authority will only ever be one of the factors for consideration and it is likely that the battleground of judicial review challenges will now move to the unreasonableness (or otherwise) of social services departments taking resources into account or giving them too much weight in situations where it is argued that an individual's need for a service is clear and service provision is therefore unavoidable. It should also be noted that there appears to be nothing in the case which excludes the continuation of the case of R v Powys County Council ex p Hambidge where leave has been granted to challenge the lawfulness of charges for section 2 of the 1970 Act services on the basis: that there is no statutory basis for such charges.
Stephen Cragg, Barrister, 2 Garden Court Chambers
