Mr Justice Latham declared the council's policy to be unlawful, and quashed its decision not to provide assistance in relation to the basic holiday costs of the applicant's disabled sister.
In accordance with its policy the council had decided to make financial assistance for a holiday available to the applicant, as his sister's carer, consisting of his full board and travel costs, and a contribution to the overall travel costs of the holiday. No assistance was provided in relation to his sister's basic holiday costs.
Jennifer Richards (Crombie Wilkinson) for the applicant; Roger McCarthy (Council Solicitor) for the council.
Mr Justice Latham said that the short point taken on behalf of the applicant was that the council having identified his sister's need as the requirement for a two week holiday, its obligation under section 2(1)(f) of the Chronically Sick and Disabled Persons Act 1970 to "facilitiate" that holiday should include consideration of some provision for the basic cost of that holiday.
The applicant accepted that the obligation was one which which gave a discretion to the council. That would not have been the case if the obligation had been to "provide" a holiday, which was the word used in relation to other services identified in section 2(1) of the 1970 Act.
He submitted, however, that by excluding the basic cost of the holiday to the disabled person, the council had unlawfully fettered its discretion.
The council contended that the intention of Parliament was not to relieve poverty, which was the province of other statutory provisions, but to relieve disabled persons so far as possible of the added financial burden imposed by their disability.
The council's obligations could not include an obligation to "facilitate" by the provision of the ordinary cost of a holiday which any person, whether disabled or not, would be expected to meet out of their own funds.
The applicant's submission was correct. The respondent's principal argument, namely that the legislation was not intended to provide relief from poverty, but relief from the extra expense of disability, begged the question.
If the council had determined, as in the present case, that the need for the holiday was a result of the disability, then the cost of the holiday to the disabled person must be capable of being an additional cost which was the result of the disability.
That view was reinforced by the fact that section 2(1)(f) of the 1970 Act envisaged that a holiday might be "facilitated" by being "provided" under arrangements made by the council. In other words, the statute envisaged a situation in which the statutory obligation could be met entirely out of the council's own resources.
By section 17 of the Health and Social Services and Social Security Adjudication Act 1983, if such provision were to be made by a council, the council could only recover the cost of the holiday if the means of the recipient of the service were insufficient to meet the cost.
The corollory of that must be that, if the holiday was arranged by or on behalf of the disabled person himself, that person's means should be a relevant factor in any decision as to whether or not to provide funding for the holiday.
It followed that the policy adopted by the council unlawfully fettered its discretion, and the decision based upon that policy was flawed and must be quashed. That would not, however, inevitably result in a different decision in relation to the applicant's sister. The council might well wish to reassess her needs, both because of the passage of time and the decision of the House of Lords in R v Gloucestershire County Council, ex parte Barry ( Law Report, 9 April 1997)  2 WLR 459.
The council had submitted that, whatever his Lordship's view about the construction of section 2 of the 1970 Act and the lawfulness of its policy, the Community Care (Direct Payments) Act 1996 provided a practical solution to the problem. It empowered local authorities to make direct payments for those in need of community care services, but made no change to the criteria which were to be applied in determining what services were "needed".
Unless, therefore, the council's decision were quashed and more particularly its policy declared unlawful, its mistaken approach to its statutory obligation to the applicant's sister, and the argument between the applicant and the council, could be perpetuated.
Kate O'Hanlon, BarristerReuse content