denotes premium content | Jan 8 2009 Feature
posted 1 Jul 1996 in Volume 1 Issue 5
Needs, Resources and the Court of Appeal:
What the Gloucestershire judgement really means.
Stephen Cragg, Project Solicitor, Public Law Project examines the background to this crucial recent judgement and explains the implications.
The Court of Appeal judgement in R v Gloucestershire County Council ex parte Barry1 has shocked many local authorities who believe that it will be impossible to implement while users groups delightedly see it as the culmination of a 25 year campaign to clarify the nature of the duties in the Chronically Sick and Disabled Persons Act 1970. Very many elderly people are disabled as well and every legal adviser needs to know what rights to services his or her clients now have. This article explores the Court of Appeal decision in depth and considers some of the consequences. Readers should note that the case goes to the House of Lords later this year.
The facts
The facts of the Gloucestershire case are simple. In September 1994 Gloucestershire withdrew or reduced home care services from about 1500 service users claiming that lack of government funding was the reason behind the changes. A number of elderly disabled people challenged the decision by way of judicial review.
A similar case occurred in Lancashire where an elderly disabled woman in receipt of 24 hour home care was re-assessed by the cash-strapped council which decided that her needs could be best met by (cheaper) residential care.
The Arguments
The applicants' case centred on the words of section 2 of the Chronically Sick and Disabled Persons Act 1970 which states that a local authority has to 'make arrangements' for a range of services listed in the section (including practical assistance in the home) where it is 'satisfied' that to do so 'is necessary in order to meet the needs' of a disabled person.
The applicants argued that in assessing or re-assessing a person's needs it would be wrong to take into account the authority's available resources to meet those needs - assessment of need is essentially an exercise which looks only at the individual's requirements. Likewise, it was argued, resources had no part to play when deciding whether it is 'necessary' to meet the needs.
The Judgment of the Divisional Court
However, in the Divisional Court McCowan LJ gave a judgment where he said that a council's resources (human and financial) and the needs of other people in the area were factors that could be taken into account both when assessing needs and when deciding whether it is necessary to meet them2. Thus it would be lawful for Gloucestershire to re-assess its users in the light of a change of resources and reduce or withdraw services even though an individual's personal needs had not changed. Likewise, in the Lancashire case the council was entitled to take resources into account when deciding to provide a person's needs for 24 hour care by a cheaper method (residential care). The Applicants appealed the decisions to the Court of Appeal. In the Lancashire case the appellant died before the court heard the case and the Royal Association for Disability and Rehabilitation (RADAR) were substituted as an appellant to test the point of principle.
The Court of Appeal Judgment
The Majority Decision
In its judgment on 27 June 1996 the Court of Appeal overturned the Divisional Court decisions by a majority of 2:1 and decided that resources had no place in the decisions as to whether services should be provided to disabled people under section 2 of the 1970 Act. In interpreting the words 'needs' and 'necessary' in section 2, Sir John Balcombe (with whom Swinton-Thomas LJ agreed) had the following to say
"Need" as a noun is a common English word. The Shorter Oxford English Dictionary (3rd ed) gives as definition 6 of "need": 'A condition marked by the lack or want of some necessary thing or requiring some extraneous aid or addition.' Simply as a matter of ordinary use of language, I do not see how, the resources available to a local authority can be relevant to the determination of the needs of a particular disabled person. If it were otherwise then the logical consequence would be that if the local authority had no resources then no disabled person resident in its area could have any needs& .[I]s it necessary for the local authority to make arrangements to meet those needs? Again the dictionary meaning of "necessary" is enlightening: "Indispensable, requisite, needful: that cannot be done without". Any arrangements beyond what is essential to meet the needs of the disabled person will not be necessary....
The Court stated that it was strengthened and supported in this view by a number of factors.
The Assessment Provision in the Community Care Act
The 'assessment' section in section 47 of the NHS and Community Care Act 1990 makes a clear distinction between services under the 1970 Act and other community care services. If, during a community care assessment, it appears that a person is disabled then the assessor is routed immediately to the 1970 Act and its mandatory terms by section 47(2) of the 1990 Act (via section 4 of the Disabled Persons (SCR) Act 1986). The position of all other community care service users (eg the frail (but not disabled) elderly and ill people) in the light of the Court of Appeal judgment is considered below.
Parliamentary Intention
It is not unknown for Parliament to impose specific individual duties on local authorities, the Court said, and cited the provision for special education needs as an example. Sir John Balcombe stated that:
Parliament knows very well how to confer a power, which will enable resources to be taken into account; if it uses language apt to impose a duty it presumably means what it says. If the fulfilment of that duty now imposes upon local authorities financial demands inconsistent with current government financial policies that does not mean that local authorities are relieved from their obligations under the 1970 Act.
Swinton-Thomas LJ confirmed that he could find nothing in the provisions of the legislation either before or after the 1970 Act 'which in any way indicates that it was the intention of Parliament when passing the 1970 Act that resources should be a relevant consideration.'
The Relationship with Section 29 of the National Assistance Act 1948
The purpose of the Chronically Sick and Disabled Persons Act 1970 was to make the general powers and duties in section 29 more specific and enforceable. The Court pointed out that if, by pleading lack of resources, a local authority would be able to escape its duties under section 2, the effect of the 1970 Act on the duties under section 29 would be minimal.
Government Guidance
Local authorities are bound to 'act under' official government guidance by section 7(1) of the Local Authority Social Services Act 1970 and, by general public law principles, have to take other guidance (for instance from the Social Services Inspectorate) into account. The Court found that the majority of the guidance which put emphasis on the availability of resources was primarily concerned with the general powers to provide community care services as listed in section 46(3) of the 1990 Act. The Court noted that where the guidance specifically referred to services provided under the 1970 Act (for example, para 3.30 of the 1990 Policy Guidance and para 31 of the Laming letter) it did not mention that resources could be taken into account when determining needs. The exception to this was guidance issued by the government shortly after the 1970 Act was passed. However, the Court dismissed the importance of this stating that, as the 1970 Act was a statute resulting from private member's bill, government guidance as to its meaning was of little use when the court came to construe the statute!
The Dissenting Judgment
In a long dissenting judgement Hirst LJ essentially agreed with the Divisional Court that a practical approach to the 1970 Act meant that local authorities had to be able to take resources into account when assessing needs. However, the judge was at pains to state that resources could not be determinative of the issues when he said:
I stress that [resources are] no more than one factor in an overall assessment where no doubt the objective needs of the individual disabled person will always be the paramount consideration.
Meeting the Assessed Needs
All three judges agreed that once the local authority was satisfied as a result of an assessment or re-assessment that provision of services was necessary in order to meet the needs of a disabled person, the authority was under an absolute duty to provide a service to meet the needs. However, all three judges agreed that at this final provision stage the council could choose the most economical way to meet the need. An example used by the Court was that of a person who had been assessed as in need of meals (under section 2(1)(g) of the 1970 Act). If it would be cheaper to provide meals on wheels rather than a person to cook for the disabled person in their home then the council would be entitled to take resources into account in making this decision. The exact role of resources at this stage is the subject of another judicial review in which judgment is expected on 30 July 1996 (R v Essex County Council ex p Bucke CO/526/96).
It is on this last point that the pensioner from Lancashire foundered. The Court held that her assessed needs were for 24 hour care and therefore the Council was entitled to choose the most economical way to provide the care, which in this case was in a residential home.
The Practical and Legal Effect of the Case
Many local authorities have complained bitterly that the decision is impractical and that central government will not make extra funds available to meet the duties. However, the Court made it clear that simply because central government decides to squeeze budgets cannot change the plain intent of Parliament which, as we have seen, in the case of the 1970 Act was found to be the imposition of an absolute duty on local authorities, regardless of resources. There are a number of very important practical and legal effects arising from the case. Some very specifically affect the elderly client:
The Pre-eminence of Services to the Disabled
Many local authorities have treated the list of community care services in the 1990 Act as a menu from which they can choose the most appropriate for clients, without considering the different powers and duties which attach to the various services. This approach manifests itself in completed care assessment forms where often the services to be provided are listed with no indication as to which of the five relevant acts of Parliament the service is to be provided under. This practice will now have to stop and local authorities will specifically need to record whether services are being provided to disabled people under the 1970 Act. Where a service can be provided to a disabled person under the 1970 Act, it will be difficult for a local authority to claim that it is being provided under a weaker duty or a power because, as we have seen, the assessment process, by section 47(2) of the 1990 Act routes the local authority directly to the 1970 Act (see box).
Needs presently met under section 2 of the 1970 Act must continue to be met so long as those 'needs' (as the word is defined by the Court of Appeal) do not change. Many elderly people will be in receipt of large home care packages and will be fearful that the authority will insist that they move into cheaper residential care. Such clients should be advised to seek a copy of their social services assessment (to which they are entitled). If this shows that the person has been assessed as needing, say, 24 hour home care, then those services should now be guaranteed. If however the client has simply been assessed as needing 24 hour care (without a specification as to where or how that care should be provided) it will be open for the Council, in any re-assessment, to choose a more economical way of meeting the need. It is submitted, though, that even here resources should be only one factor taken into account alongside client choice and the other aims of community care set out in the 1990 Policy Guidance.
New and potential users for services under the 1970 Act must have their needs assessed without regard to an authority's resources and then those needs must be met.
Other Service Users
All other potential and existing services users (ie those who are not disabled) have their needs assessed or re-assessed and their subsequent service provision decided pursuant to section 47(1)(a) and (b) of the 1990 Act (see box). This will include users and potential users of services provided to elderly people under section 48 of the Health and Public Health Act 1968 which is listed as a community care service. While it is clear that the initial assessment of need (under s47(1)(a)) cannot now take into account resources, the duty of the local authority (under s47(1)(b)) is then to 'have regard to' the results of the assessment when deciding what services to provide. The Court of Appeal decided, obiter, that this gives local authorities a discretion whether to provide services or not, and therefore resources could be taken into account when exercising this discretion. It will be lawful, therefore, not to meet all assessed needs.
The Lawfulness of Eligibility Criteria
Many local authorities arrange priorities of need and the provision of services through the use of eligibility criteria which often, for example, define need in terms of a number of bands. Although eligibility criteria have no basis in statute, they are referred to in government guidance and specifically recommended by the Audit Commission3. Eligibility criteria will almost always have been drawn up explicitly with the available resources of the local authority as an important factor. To the extent that these criteria purport to define need with reference to resources their use will be unlawful for all community care assessments. Those criteria which are used solely to decide which services will be provided to meet assessed needs will be unlawful where they purport to limit the 1970 Act needs which will be met.
No Power to Charge for 1970 Act Services?
For some time there has been debate about whether there is a power to charge for services provided under the 1970 Act. Under section 17 of the Health and Social Security and Social Services Act 1983 ("HASSASSA") a list is provided of services for which a charge can be made. The list does not include services under section 2 of the 1970 Act but it does include section 29 of the 1948 Act. However, section 2 of the 1970 Act states that services under that section are provided 'in exercise of [local authorities'] functions under section 29'. The conventional view is that services provided under section 2 of the 1970 Act are therefore part of section 29 and charges can be levied. Some doubt has now been cast on this view by the Court of Appeal.
In the 1990 Act the definition of 'community care services' does not specifically include services under the 1970 Act but again, because section 29 is mentioned, it has been assumed that the 1970 Act services are included. However, Swinton-Thomas LJ makes it clear that it is his view that parliament did not intend the duties under the 1970 Act to be incorporated into the 'community care regime'. This finding is used to differentiate between 1970 Act services and other services on the question of a separate assessment process. In effect, however, what is being said is that the 1970 Act is not part of section 29. If this is so at the assessment stage, it is submitted that it may also be so on the question of charging, and that there is, in fact, no power in HASASSA to charge for services provided under section 2 of the 1970 Act.
1 Linked with R v Lancashire County Council ex p RADAR.
2 Reported as R v Gloucestershire County Council ex p Mahfood (1995) 8 Admin LR 180.
3 See for example Taking Stock: Progress with Community Care (December 1994).
