Resources irrelevant to duty to accommodate elderly

Law REPORT: 3 OCTOBER 1997: A local authority was entitled to take account of its limited financial resources in assessing whether an elderly person was in need of care and attention within the terms of section 21 of the National Assistance Act 1948, but,

The Court of Appeal allowed the appeal against the decision of Mr Justice Jowitt (Law Report, 18 April 1997) that a council was entitled to take account of its own resources in considering an applicant's need for accommodation under section 21 of the National Assistance Act and in deciding whether it was under a duty to provide such accommodation.

Richard Drabble QC, Helen Mountfield and Andrew Suddard (Public Law Project) for the appellants; Andrew Gilbart QC and John Barrett (Council Solicitor) for the council.

Lord Woolf MR said that the case raised three issues: 1) whether a local authority in deciding whether an elderly person was in need of care and attention, in which case it would be required to make arrangements for residential accommodation to be made available, was entitled under section 21 of the National Assistance Act 1948 as amended to have regard to its limited financial resources; 2) whether, if its limited resources were relevant, they justified the policy which Sefton had adopted; and 3) whether, in determining if "care and attention is not otherwise available to a person" an authority was entitled to take the resources of that person into account even though they fell below the levels prescribed by regulations for the purposes of sections 22 to 26 of the 1948 Act.

The calls on Sefton's resources available to meet needs in relation to accommodation were subject to greater demands than was the case with other councils because it had a large number of elderly and disadvantaged residents. Sefton approached those difficulties by assessing individuals whom it felt might require community care services irrespective of their means or the council's resources. It then sought to arrive at a sensible prioritisation of persons in need against the background of its available resources.

Between the date of the hearing before Jowitt J and the date of his judgment, the House of Lords had decided R v Gloucestershire County Council and anor, ex p Barry (Law Report 9 April 1997). That decision had clearly influenced the judge. He had not, how-ever, had the benefit of argument as to its relevance to the present case.

The issue in Barry was whether a local authority could properly take account of its own financial resources when assessing the needs of a disabled person under 2(1) of the Chronically Sick and Disabled Persons Act 1970. However, Sefton's policy was not to use its financial position to provide a standard against which to assess "need" but to defer consideration and payment (because of its lack of resources) where it accepted that there was a need of care and attention.

Having regard to the reasoning in Barry it must be concluded that there was a limited subjective element in making the assessment whether the ailments of the person concerned did or did not collectively establish a need for care and attention. The first issue would therefore be determined in the affirmative.

Having, however, accepted that a person was in need of care and attention, Sefton were not entitled to say that because of their lack of resources they were not prepared to meet the duty placed on them by section 21. The second issue was therefore to be determined adversely to Sefton.

With regard to the third issue, Sefton were not entitled to provide their own scale for judging a person's ability to pay for their own care. Any other approach was incompatible with the language of the relevant statutory provisions.

- Kate O'Hanlon, Barrister