LAW REPORT :CUT IN COMMUNITY SERVICES WAS UNLAWFUL

LAW REPORT v 20 June 1995; Cut in community services was unlawful

Regina v Gloucestershire County Council, ex parte Mahfood and others; Regina v Islington London Borough Council, ex parte McMillan. Queen's Bench Divisional Court (Lord Justice McCowan, Mr Justice Waller) 16 June 1995

Although a local authority could take into account the financial resources available to it when assessing a disabled person's needs for community care services and in deciding what services to provide, it was not entitled to regard a cut in its resources as a sufficient justification for withdrawing such services, without first reassessing each recipient's needs in the light of existing resources and other competing needs.

The Queen's Bench Divisional Court granted applications by five disabled pensioners, Wesley Mahfood, aged 71, Michael Barry, 79, Constance Grinham, 79, and Christopher and Violet Dartnell, 76 and 71 respectively, all of whom sought judicial review to quash decisions by Gloucestershire County Council, withdrawing, curtailing or failing to provide them with community care services, such as home help with cleaning, shopping, laundry and meals, on the ground that the council could no longer finance such services.

But the court dismissed an application against a similar decision by Islington London Borough Council, who the court felt had done a proper balancing exercise before deciding not to guarantee uninterrupted home cleaning and laundry services to a 53-year old man with osteoporosis and Parkinson's disease.

Richard Gordon QC and Alan McLean (Public Law Project) for the applicants; Patrick Eccles QC and Christopher Frazer (Council Solicitor) for Gloucestershire; Roger McCarthy (Borough Solicitor) for Islington; Nigel Pleming QC and Stephen Kovats (Treasury Solicitor) for the Secretary of State for Social Services.

Lord Justice McCowan said that by section 47(1) of the National Health Service and Community Care Act 1990, where it appeared that anyone for whom the local authority might arrange community care might be in need of it, the authority was under a duty to carry out an assessment of that person's needs for those services.

If, during that assessment, it appeared that a person was a disabled person (and there was no dispute that the applicants all fell into that category) section 47(2) was triggered, requiring the authority to make a decision, under section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986, as to the services the disabled person required in accordance with section 2(1) of the Chronically Sick and Disabled Persons Act 1970, and also to inform him that it would be doing so and of his rights under the 1986 Act.

Under section 2 of the 1970 Act, the authority had to be satisfied "that it is necessary in order to meet the needs of that person for that authority to make arrangements". If so, "it shall be the duty of that authority to make those arrangements".

It was argued for the applicants that individual need was the only criterion. Sufficiency of resources or the number of other persons requiring services in the same area were irrelevant. The duty on the authority was an absolute and specific one aimed at the satisfaction of individual need, and not a target duty.

Gloucestershire said its social services department had a strong professional commitment. But following a reduction in its grant, the council had insufficient funds to keep up its commitments to the applicants and others like them and decided to give greater priority to the more seriously disabled.

In his Lordship's judgment, those assessing need would inevitably compare the extent of the disabilities of the persons concerned in order to arrive at a view as to who needed help more. That comparative exercise was obviously related to resources. Indeed, it seemed a local authority faced an im- possible task unless it could have regard to the size of the cake so in turn it knew how fairest and best to cut it.

A local authority was thus right to take account of resources both when assessing needs and when deciding whether it was necessary to make arrangements to meet those needs.

In these cases, it would certainly have been open to Gloucestershire to re-assess the individual applicants, taking into account the reduced resources now available. What it was not allowed to do, however, but what it did in these cases, was not to re-assess at all but simply to cut the services. This amounted to treating the cut in resources as the sole factor to be taken into account, and that was unlawful.

Mr Justice Waller agreed.