A local authority is not under a legal duty directly to maintain any accommodation for the elderly in need of care and attention in premises under its own management but is entitled to make arrangements with voluntary organisations or in the private sector to provide accommodation.
The House of Lords dismissed an appeal by the applicant, William Beckwith, from the Court of Appeal's decision that the council was entitled to discharge its statutory duty to make arrangements for providing residential accommodation for old people in need of care and attention entirely by means of arrangements made with third parties.
Sections 21 and 26 of the National Assistance Act 1948, as amended by the National Health Service and Community Care Act 1990 and the Community Care (Residential Accommodation) Act 1992 provide:
21(1) . . . a local authority . . . shall make arrangements for providing (a) residential accommodation for persons . . . who by reason of age, illness, disability . . . are in need of care and attention . . . 26(1) . . . arrangements under section 21 . . . may include arrangements made with a voluntary organisation or with any other person . . .
The applicant, aged 75, lived in one of four homes for the elderly in Wandsworth. In 1994 the council decided to transfer three homes into private ownership, subject to arrangements for their continued use as homes for the elderly, and to close the fourth. The applicant applied for judicial review on the ground that the council was under a legal duty under sections 21 and 26, as amended, to maintain some accommodation for elderly in premises under its own direct management.
Mr Justice Popplewell quashed the council's decision. The Court of Appeal allowed the council's appeal, holding that the council was entitled to discharge its statutory duty entirely by means of arrangements made with third parties.
The applicant appealed, arguing that "may include" in section 26 meant that private sector arrangements might form part of the local authority's arrangements under section 21 but did not mean "might wholly consist of".
Richard Gordon QC and Alan Maclean (Wandsworth Law Centre) for the applicant; Alan Wilkie QC and Sean Jones (Borough Solicitor) for the council.
Lord Hoffmann said that if the Act had said that accommodation to be provided by the council "may include" homes in the private, there might have been some force in the argument. However the duty of the council under section 21 was to make "arrangements" for providing residential accommodation for certain classes of people.
Section 26 said that "arrangements under section 21" (not, "the arrangements made under section 21") might include arrangements with the private sector. The draftsman was not saying that homes in the private sector might be included in the collective of homes which the council had to provide. He was saying that the concept of "arrangement" which had been used to define the council's duty in section 21 was to include arrangements with the private sector.
That produced an altogether different result: it extended the meaning of the concept by which the council's duty was defined. Any arrangements which fell within the extended definition would satisfy the council's duty.
The policy guidance issued by the Department of Health contained references to a "mixed economy of care" and encouraged more use of the private sector. The guidance contemplated that the move to greater private provision would take some time. It did not follow that local authorities had to retain direct control of some unspecified proportion of every service. That would have been imposing a duty to make direct provision which seemed contrary to the general thrust of the government's policy.
It was true that paragraph 4 of Local Authority Circular LAC(93)10 said it was the view of the department that the amendments would require authorities to make some provision for residential care under the 1948 Act. That statement was simply wrong.
Lord Goff, Lord Griffiths, Lord Jauncy and Lord Browne-Wilkinson agreed.
Ying Hui Tan, Barrister