denotes premium content | Jan 7 2009 Feature
posted 1 May 1997 in Volume 2 Issue 4
Sefton
Is there a Duty of Care for the Elderly
Jean Gould, Project Solicitor for the Public Law Project, describes the background to the Sefton case and examines what the judgment means.
The Sefton judgment in the High Court on 26 March was greeted with cries of horror from across the political spectrum. It seems to have been a decision that no-one expected or wanted. The chair of Sefton Social Services Committee reiterated the response of the director of Gloucestershire Social Services Department to the House of Lords majority decision in that case, that it was a case with no winners.
In the judicial review brought by Help the Aged and two individual older people in residential care, R v Sefton Metropolitan Borough Council ex parte Help the Aged and others, Jowitt J effectively ruled that a local authority has no duty to arrange residential care for anyone with the means to pay for it themselves, thus depriving the charging regulations of much of their supposed effect.
Readers should note that an application for leave to appeal is currently before the Court of Appeal.
The Facts
In the summer of 1996, both Age Concern and Help the Aged were contacted by relatives of elderly people living in residential accommodation in Sefton who were being refused any financial assistance towards the cost of their care. This was despite the fact that their capital had fallen well below the threshold of £16,000 at which individuals are no longer liable for the full cost of their care pursuant to Regulations1 made under sections 22 and 26 of the National Assistance Act 1948 (as amended). It transpired that cases were presented to an 'allocations panel' each week for consideration, and that Sefton was only meeting the costs of residential care when an individual's savings had fallen to £1,500 - about the cost of a funeral.
Those affected fell broadly into two categories, each individual applicant exemplifying one. The local authority arranged a rest home place for Cyril Pinch and met the costs in full until his beneficial interest in his former home was realised and he became self-funding. When his capital was less than £16,000 Sefton refused to contribute to the cost of his care. Charlotte Blanchard made private arrangements to enter a nursing home following her discharge from hospital. When she applied for assessment, having similarly used up her capital, Sefton refused to make arrangements for her care, and she continued to meet the full costs privately, and still does.
The Law
Readers should bear in mind that the hearing of this case pre-dated the decision of the House of Lords in R v Gloucestershire County Council and the Secretary of State for Health ex parte Barry, but judgment was reserved until after that decision was known (see article by Stephen Cragg on Page 12 of this issue).
Part III of the National Assistance Act 1948 (as amended by the National Health Service and Community Care Act 1990) deals with residential accommodation for adults. Section 21(1) provides:
"Subject to and in accordance with the provision of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such an extent as he may direct shall, make arrangements for providing:
(a) residential accommodation for persons aged 18 or over who by reasons of age, illness, disability or other circumstances are in need of care and attention which is not otherwise available to them;"
It was accepted that the effect of the relevant ministerial direction2 was to render the power in section 21(1) a statutory duty.
Section 26 empowers the LA to make arrangements with voluntary/independent sector homes to provide residential care. The duty to make arrangements for such provision will be triggered when an individual's needs have been assessed, and a decision made that those needs "call for" the provision of residential care3.
Section 22 requires the local authority to recover from the resident 'payment which he is liable to make in accordance with the& provisions of this section', which include giving effect to (charging) regulations. Subsections 26(2) - (4A) apply the charging regulations to people in independent sector homes.
Binding statutory guidance issued under section 7(1) Local Authority and Social Services Act 1970, "Community Care the Next Decade and Beyond, Policy Guidance", states at paragraph 3.31 that:
"The provision of services, whether or not the local authority is under a statutory duty to make provision, should not be related to the ability of the users& to meet the costs& .The assessment of financial means should, therefore, follow the assessment of need and decisions about service provision."
The applicants argued that the assessment and charging provisions were enacted together in 1990, coming into force in 1993, and should be read as a consistent whole as Parliament intended, and that the policy adopted by Sefton was unlawful because:
- it took its own resources into account in assessing need, contrary to the then majority decision of the Court of Appeal in the Gloucestershire case;
- it confused the stage of the service provision decision with the charging decision whereas the applicant's resources are not relevant at the first stage (see the policy guidance above), but only at the second;
- that in deciding whether care and attention were "otherwise available" to someone their resources were an irrelevant consideration, or alternatively only relevant to an extent that was consistent with the legislative scheme. The mandatory nature of charges for residential care was contrasted with the discretionary scheme for non-residential charges4;
- that any other reading renders the charging regulations meaningless, gainsays statutory guidance, and creates unfairness as between those who are in part III accommodation with capital below £16,000 and those outside part III with the same capital resources.
The Respondent argued that the practice in Sefton was to assess elderly people who, save for their financial resources, would be eligible for part III accommodation, and then to keep the assessment under review at a weekly panel meeting until that individual's resources had reached the threshold imposed by Sefton of £1,500 at which point a service provision decision would be made. The same system was applied to those people, like Mr Pinch, who were in Part III accommodation, but who then acquired capital resources over the £1,500 threshold.
The Respondent defended this practice on the basis that:
- adopting the then minority Court of Appeal view in the Gloucestershire case, the LA can take its resources into account in assessing need;
- that the construction of "otherwise available" in section 21(1) NAA is not limited so as to exclude a consideration of the applicant's resources;
- in the absence of statutory exclusion, other considerations, especially the competing demands from people in need of care across the authority, were relevant.
The decision and what it means
The hearing of the judicial review centred on the question of whether, on the true construction of section 21(1), an LA is entitled to take account of (1) its own financial resources, and (2) the financial resources of those seeking community care in deciding whether it must exercise its statutory duty to arrange accommodation. During the course of argument the Applicants conceded that an individual's resources could be one of the considerations in determining whether the section 21 duty was triggered, but only consistently with the whole statutory framework, i.e. not if they were less than £16,000.
Jowitt J ruled that:
- the statutory duty to provide domiciliary services under section 2(1) of the Chronically Sick and Disabled Persons Act 1970 (the subject of the Gloucestershire decision) "speaks with the same peremptory voice" as section 21(1) NAA and thus the question as to whether an LA can lawfully take its own resources into account in assessing need must be answered in the same way;
- in the case of an individual who needs residential care, an LA must decide whether that need will be met if part III accommodation is not provided and, in so doing, the person's available resources are a relevant consideration;
- despite the consequent inequality, the charging regulations have no place in a proper construction of section 21(1).
In short, Jowitt J ruled that LAs are entitled to take both their own resources and the applicant's resources into account in deciding if they have a duty to arrange residential care.
In relation to Mr Pinch the Respondent sought to argue that the three-way contractual arrangement made between him, the home and the LA had been terminated when his capital became available to him so that he was in the same situation as Mrs Blanchard. In the absence of any evidence to support this contention, the court ruled that Mr Pinch was still in part III accommodation and the charging regulations applied and must be honoured by Sefton.
The fact that the LA argued that Mr Pinch and Mrs Blanchard were in the same position and yet Mr Pinch succeeded in his judicial review and Mrs Blanchard failed, demonstrates the practical difficulties and gross inequality that this judgment produces.
The effect of the ruling is that an LA can lawfully decide that it is not under a duty to arrange residential care if that need can be met in any other way, including by the individuals paying for it out of their own resources, however small, subject only to general Wednesbury unreasonableness. Furthermore, a change in financial circumstances can trigger a lawful re-assessment of someone in the Mr Pinch situation, and a contractual arrangement could be terminated leaving the individual self-funding without the safety net that the charging regulations were thought to provide.
There are some misconceptions emerging in the wake of this judgment that need clearing up. The first concerns assessment. It is not the case that an LA can refuse to assess someone who has some capital of his/her own. The right to an assessment arises under section 47 NHSCCA and is applicable to anyone for whom the LA may provide community care services and who may need them. This cannot lawfully preclude elderly people who are finding it difficult or impossible to cope at home, and who have savings, and any attempt to do so should be challenged.
The second issue is the extent to which the charging regulations still apply. The statutory scheme for charging for residential accommodation is a mandatory scheme and LA's must apply it in full to all those elderly residents who are in part III accommodation. This was why Mr Pinch won his case. The capital limits are not now relevant in deciding whether a person needs part III accommodation. The practical effects may not be very different, but the legal basis is.
An elderly person's financial resources are now a relevant factor in determining whether the need for residential care can be met other than through a LA arrangement. Resources are not the determinative factor. If LA's reach decisions that they do not owe a duty without considering relevant factors other than financial ones, the decision could still be unlawful5. For instance an elderly person who is also confused some or all of the time may not be capable of making his or her own arrangements. As those advising the elderly know, individuals may be vulnerable in all sorts of ways, and having savings will not necessarily mitigate such vulnerability. These points will need to be argued more widely if other local authorities follow the unfortunate lead that Sefton has set. ECA.
Jean Gould, Project Solicitor, Public Law Project
1 National Assistance (Assessment of Resources) Regulations as amended (SI1992 No 2977 as amended by SI 1996 No 602).
2 LAC 93(10) Approvals and Directions for Arrangements from 1st April 1993 made under sections 21 and 29 of the National Assistance Act 1948.
3 See section 47(1)(a) and (b) NHSCCA 1990 for the duty to assess and make a service provision decision.
4 See section 17 Health and Social Services and Social Security Adjudications Act 1983 (as amended).
5 Advisors should note paragraph 5 of LAC(92)19 Charging for Residential Accommodation.
