Swinton Thomas, Sir John Balcombe) 27 June 1996
A local authority was not entitled, when assessing the care needs of a disabled person and the arrangements required to meet them pursuant to section 2 of the Chronically Sick and Disabled Persons Act 1970, to take into account the resources available to it in both human and financial terms.
The Court of Appeal by a majority (Lord Justice Hirst dissenting) allowed an appeal by Michael Barry against the refusal of the Queen's Bench Divisional Court, on 16 June 1995, to make a declaration to the above effect on his application for judicial review of a decision by Gloucestershire County Council to withdraw his care services.
However, the court dismissed an appeal, brought by the Royal Association for Disability and Rehabilitation (Radar) and Beryl Gilpin in substitution for the original applicant, Mrs Annie Ingham deceased (Mrs Gilpin's mother), against the dismissal by Mr Justice Hidden, on 5 July 1995, of an application for judicial review of a decision of Lancashire County Council concerning Mrs Ingham's care arrangements.
Section 2 of the 1970 Act provides:
Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely [and the section then sets out a range of care services listed (a) to (h)] . . . then . . . it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29.
Richard Gordon QC, Alan McLean (Public Law Project) for Mr Barry; Cherie Booth QC, Helen Mountfield (Public Law Project) for Radar and Mrs Gilpin; Patrick Eccles QC, Christopher Frazer (Council Solicitor) for Gloucester; Genevra Caws QC, Clive Lewis (Council Solicitor) for Lancashire; Nigel Pleming QC, Stephen Kovats (Treasury Solicitor) for the Secretary of State for Health.
Lord Justice Swinton Thomas said he could find nothing in the legislation enacted either before or after the 1970 Act which in any way indicated that Parliament intended when passing that Act that resources should be a relevant consideration when a local authority was required to carry out its statutory duty to a disabled person under section 2(1).
If Parliament had intended to incorporate the duties laid down by section 2 of the 1970 Act into the regime established by the National Health Services and Community Care Act 1990, under which local authorities were entitled to take into account their resources when deciding whether to provide Community Care services, then Parliament could readily have so legislated. That it chose not to do so supported the applicants' case.
One had to construe the words of section 2 of the 1970 Act in accordance with their natural meaning. It was argued by the respondents that an assessment of need involved a discretion. That was the fundamental flaw in their argument. A need was a question of assessment and judgment, not discretion. Whether or not a disabled person had a need must be assessed in precisely the same way as whether he was disabled.
It was difficult to see how a third party's resources or the needs of others could be relevant to making such an assessment or judgment. Once the need was identified then, following the language of section 2, it became a duty to make the provision necessary to meet that need. Resources might then be relevant to the manner in which such provision was made.
But, his Lordship concluded, a local authority was not entitled to take into account the availability or otherwise of resources when carrying out its duty under section 2(1) of the 1970 Act.
In the case of Mrs Ingham, who required 24-hour care, the authority had decided that care could be provided more cheaply by placing her in a nursing home. Although resources played a part in that decision, his Lordship was not persuaded that the authority acted improperly or unlawfully.
In Mr Barry's case, the cleaning and laundry services which he had been assessed as needing were withdrawn solely on financial grounds: that decision was unlawful.