The Impact of the Gloucestershire Case

With the House of Lords due to hear the Gloucestershire(1) appeal in early February, Stephen Cragg(2) rehearses some of the practical implications of the Court of Appeal decision that the judges will need to consider in their judgements.

1. Local authorities greeted the Court of Appeal judgment with arguments that 'it would be difficult and unwieldy to operate' a system whereby needs of disabled people under section 2 of the Chronically Sick and Disabled Persons Act 1970 are pre-eminent to community care services provided pursuant to section 47 of the 1990 Act, Swinton-Thomas LJ in the Court of Appeal anticipated these objections when he said:

'I do not myself see that this creates any great difficulty, bearing in mind that section 47 gives the local authority very broad powers to provide community care services, whereas section 2 only imposes a duty to make provision to meet identified need. In any event, it is by no means unusual in social security legislation to find basic provision provided for in one statute and further potential provision provided for in another'

2. No doubt, Gloucestershire County Council will revert to this theme in the Lords. It will be interesting to see if their Lordships approach their task of statutory interpretation from a strictly 'Parliamentary intention' point of view (as the Court of Appeal did) or whether they allow extraneous practical considerations to colour their judgments.

3. Many disabled 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. Local authorities in turn are worried that they are locked into providing expensive home care packages with no option to provide the service in a different way when financial times get tough.

4. A disabled person is defined by the National Assistance Act 1948 and for the purposes of community care law as a person 'who is blind, deaf or dumb or who suffers from mental disorder of any description and other persons who are substantially or permanently handicapped by illness, injury or congenital deformity'. This definition is so wide that local authorities are likely to face legal challenges if they control expenditure on services by attempting to exclude community care service users from this definition. It is uncertain whether the Court of Appeal fully considered the very large range of people (including many elderly people) who can adopt the label of disabled person.

5. Presently, it is submitted that the following assessment procedure is the correct one:-

For disabled people

Assess the person's needs for services under section 2 of the Chronically Sick and Disabled Persons Act 1970.
The assessed need for services must be met.
As a result of a re-assessment a disabled person's services under the 1970 Act cannot be removed or reduced unless their personal need has changed, but that need may be met in a more cost effective way.

For non-disabled people (the frail elderly, and ill)

Assess needs without reference to resources available to meet the needs.
Having regard to the assessed needs decide whether the needs call for the provision of services (resources can be one of the factors taken into account at this stage).
On a re-assessment the factors taken into account at the second stage can change and services can be reduced or removed even if personal needs remain the same.

The end of eligibility criteria?

6. As mentioned in a previous article within ECA on this case (Volume 1 Issue 5), eligibility criteria are routinely adopted by Councils in an attempt to ensure that demand and supply for services coincide. The post - Court of Appeal situation would appear to be as follows:

Any eligibility criteria for determining need which have been drawn up after taking resources into account will now lead to unlawful assessment of needs for all community care services;
It will still be lawful to have eligibility criteria which take into account resources when giving guidance as to whether particular needs will be met, except for services provided to meet the needs of disabled people under the Chronically Sick and Disabled Persons Act 1970;
It will still be lawful for a local authority to draw up its own definition of need to be used during assessments, so long as this has not been drawn up with resources in mind.

Budget Control and the Court of Appeal analysis

7. Is it true that the Court of Appeal's analysis of Section 2 of the Chronically Sick and Disabled Persons Act 1970 necessarily leads to a situation where local authorities will lose control of their budgets? Pending the House of Lords judgment, Councils wanting to keep within the letter (if not the spirit) of the law may adopt a number of tactics to keep control of their budgets:

The Court of Appeal made it clear that when it talked about 'need' it was referring to a basic level of provision of care. Local authorities will latch on to this when deciding how to define 'need' locally. The more restrictive the definition the less need there will be to meet. How far can this process go before the court will hold the definition to be unreasonable?
There is nothing to stop a round of re-assessments being triggered by a budgetary crisis. The re-assessments can then be used to see whether personal needs have changed or whether the needs can be met in a cheaper way.
The Court of Appeal had no objection to the local authority reassessing those previously assessed as needing 24 hour care and presently receiving that care in their own home. It will be lawful for the Council to conclude that their needs can be met by cheaper residential care. Clearly the desire of a person to remain in their home is a factor to consider, but this can be outweighed by the authority's lack of resources.

1 R v Gloucestershire County Council ex p Barry (1996) Times 12 July, CA.

2 Former solicitor for Mr Barry, the service user in the Court of Appeal Case. Presently a pupil barrister at 2 Garden Court Chambers, Temple, London EC4; 0171 353 1633

Stephen Cragg is a Solicitor and Pupil Barrister at 2 Garden Court Chambers. Stephen will be speaking at two forthcoming conferences that will cover several of the key "aspects of community care".