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|Judgments -- Reg. v. Gloucestershire C.C. and the Secretary of State for Health. Ex parte Barry|
Reg. v. Gloucestershire C.C. and Another. Ex parte Barry
Lord Hoffmann Lord Clyde
LORD LLOYD OF BERWICK
Under section 29 of the National Assistance Act 1948 as originally enacted local authorities had the power to make arrangements for promoting the welfare of disabled persons. Under section 1 of the Chronically Sick and Disabled Persons Act 1970 local authorities were, for the first time, placed under a duty to inform themselves of the need for making arrangements for disabled persons within their area. Section 2 of the Act of 1970, on which the present appeal turns, provides that where a local authority is satisfied in the case of a disabled person within their area that it is necessary to make arrangements in order to meet the needs of that person, then the local authority is under a further duty to make those arrangements. It was common ground that the duty imposed on the local authority under section 2 of the Act of 1970 is a duty owed to the disabled person individually. In that respect section 2 is almost unique in the field of community care, the only other example of such a duty (so it was said) being section 117 of the Mental Health Act 1983.
Mr. Michael Barry lives in Gloucestershire. He was born in 1915, so he is coming up for his 82nd birthday. In the summer of 1992 he spent a short spell in Gloucestershire Royal Hospital suffering from dizzy spells and nausea. He was told that he had suffered a slight stroke. He has also had several heart attacks, and cannot see well. After discharge from hospital, he returned home, where he lives alone. He gets around by using a zimmer frame, as a result of having fractured his hip several years ago. He has no contact with any of his family. But two friends call from time to time to do things for him. On 8 September 1992 he was referred to the Social Services Department of Gloucestershire County Council ("the Council"). On 15 September his needs were assessed as follows:
The Council arranged to provide these services. Nearly a year later, on 3 August 1993 Mr. Barry received a routine visit from the Social Services Department. His needs were assessed as being the same.
Then on 29 September 1994 Mr. Barry received a letter from the Council regretting that they would no longer be able to provide Mr. Barry with his full needs as assessed. Cleaning and laundry services would be withdrawn. The reason given was that the money allocated to the Council by central Government had been reduced by £2.5 million and there was "no-where near enough to meet demand." It is only fair to add that the letter was sympathetic in tone.
Mr. Barry, and other residents, commenced proceedings for judicial review. His case is that his needs are the same as they always were. Parliament has imposed a duty on the Council to do what is necessary to meet those needs, and it is no answer that they are short of money, as no doubt they are. The Council's case is that in assessing Mr. Barry's needs they are entitled to have regard to their overall financial resources.
The case came before the Divisional Court on 6 June 1994. In the meantime the Council had, very properly, continued to provide Mr. Barry with the same services as before, pending the outcome of the proceedings. Mr. Gordon Q.C., who appeared for Mr. Barry, did not press his claim for an order of mandamus to compel the Council to perform their statutory duty. But he was granted a declaration in the following terms:
On the broader question of whether the Council is entitled to take resources into account in assessing an individual's needs, McCowan L.J. said that a local authority would face an impossible task unless it could have regard to the size of the cake before deciding how to cut it.
The test proposed by the Divisional Court was as follows:
This seems to reduce the minimum obligation under section 2 of the Act of 1970 to the level of Wednesbury unreasonableness.
Following the decision of the Divisional Court on the narrow question, the Council reassessed some 1,500 people in receipt of services under section 2 of the Act of 1970. As a result of the reassessment the number was reduced to 1,060. But meanwhile Mr. Barry had launched an appeal on the broader question. On 27 June 1996 the Court of Appeal  4 All E.R. 421 allowed his appeal by a majority, with Hirst L.J. dissenting. The Court of Appeal granted declarations as follows:
The first of these declarations is no longer of practical effect, since the re-assessment has been carried out, and the services reduced as a consequence. But if the second of the declarations is correct, the Council would be obliged to revert to their former practice, and if necessary carry out a further re-assessment without taking their resources into account. The Council now appeals to the House. The Secretary of State for Health is joined in the appeal. It is as well that he should be for it is the failure of central Government to supply the funds necessary to enable the Council to carry out what I regard as their statutory duty which, departing from the fine words contained in the Government White Paper "Caring for People: Community Care in the Next Decade and Beyond" (1989) (Cm. 849), has put the Council into what the Divisional Court called an impossible position; truly impossible, because even if the Council wished to raise the money themselves to meet the need by increasing council tax, they would be unable to do so by reason of the government-imposed rate capping.
The construction of section 2 of the Act of 1970 does not seem to me to present any real problems. I set out the relevant part of the section verbatim:
The section contemplates three separate stages. The Council must first assess the individual needs of each person to whom section 29 of the Act of 1948 applies. Having identified those needs, the Council must then decide whether it is necessary to make arrangements to meet those needs. There might be any number of reasons why, in the circumstances of a particular case, it might not be necessary for the local authority to make arrangements, for example, if the person's needs were being adequately met by a friend or relation. Or he might be wealthy enough to meet his needs out of his own pocket. But if there is no other way of meeting the individual's needs, as assessed, and the Council is therefore satisfied that it is necessary for them to make arrangements to meet those needs, then the Council is under a duty to make those arrangements. It is essential to a proper understanding of section 2 of the Act of 1970 to keep the three stages separate. Confusion arises if the stages are telescoped.
There is not much dispute about the second and third stages. Mr. Pleming on behalf of the Secretary of State conceded that at the third stage the duty is absolute. In other words, the Council cannot escape their duty to make arrangements to meet the need by saying that they do not have the money. Mr. Gordon, for his part, accepts that the Council must obviously be allowed a good deal of flexibility as to the arrangements which they make, provided always that the need is met. So the second and third stages do not require elaboration. It is over the first stage that the battle was joined.
It was as I have said common ground that the duty under section 2 is owed to the disabled person individually. It is not surprising, therefore, that the starting point of the whole exercise is the assessment of his individual needs. The assessment is, to adopt the departmental jargon, "needs-led." The word "need" like most English words has different shades of meaning. You can say to an overworked Q.C. at the end of a busy term "You look as though you need a holiday." The word "need" in section 2 is not used in that sense; which is not to say that there may not be disabled people living in very restricted circumstances who may not need a holiday in the sense which Parliament intended. To need is not the same as to want. "Need" is the lack of what is essential for the ordinary business of living.
Who then is to decide what it is that the disabled person needs, and by what yardstick does he make his decision? I do not find the answer difficult. In the simplest case it is the individual social worker who decides. In more complicated cases there may have to be what is called a comprehensive assessment. But in every case, simple or complex, the need of the individual will be assessed against the standards of civilised society as we know them in the United Kingdom, or, in the more homely phraseology of the law, by the standards of the man on the Clapham omnibus. Those standards may vary over time. What was acceptable in Victorian England might not be acceptable today. Expectations have risen. But this does not pose any difficulty. The assessment of the needs of the disabled individual against contempoary standards is left to the professional judgment of the social worker concerned, just as the need for a by-pass operation is left to the professional judgment of the heart specialist.
Who then decides what are the contemporary standards against which the social worker assesses the individual's needs? Again the answer seems straightforward. The standard is that set by the social services committee of the local authority in question. No doubt this was one of the reasons why social services committees were set up in the first place by section 2 of the Local Authority Social Services Act 1970, so as to represent the views of ordinary members of the public. Standards may vary from one local authority to another. But since the United Kingdom is relatively homogeneous, the standards may be expected to approximate to each other over time.
It is said that the standards of civilised society as interpreted by the social services committee of a particular local authority is too imprecise a concept to be of any practical value. I do not agree. But even if it were so, I do not see how it becomes less imprecise by bringing into consideration the availability of resources. Resources can, of course, operate to impose a cash limit on what is provided. But how can resources help to measure the need? This, as it seems to me, is the fallacy which lies at the heart of the Council's argument.
The point can be illustrated by a simple example. Suppose there are two people with identical disabilities, living in identical circumstances, but in different parts of the country. Local authority A provides for his needs by arranging for meals-on-wheels four days a week. Local authority B might also be expected to provide meals-on-wheels four days a week, or its equivalent. It cannot, however, have been Parliament's intention that local authority B should be able to say "because we do not have enough resources, we are going to reduce your needs." His needs remain exactly the same. They cannot be affected by the local authority's inability to meet those needs. Every child needs a new pair of shoes from time to time. The need is not the less because his parents cannot afford them.
There was much discussion in the course of the hearing of the appeal about "eligibility criteria." This is the departmental way of describing the standard against which an individual's needs are judged. Local authorities are encouraged to publish their own eligibility criteria. The Council has not fallen behind in this respect. There are elaborate tables included among our papers in which different degrees of disability are set against varying degrees of isolation from the community and other relevant factors. There are recommendations about the level of services which are appropriate for different combinations of disability and individual circumstances. Thus for a given degree of disability and a given degree of isolation (to take two of the relevant factors) the recommended home care might be for meals-on-wheels three times a week (or equivalent), cleaning twice a week and laundry once a fortnight. What is interesting about all this for present purposes is that nowhere in the tables is there any reference to resources. Nor is there any reason why there should be. The eligibility criteria can work perfectly well without taking resources into account, as Mr. Pleming was prepared to concede. With respect to those who take a different view, I can see no necessity on grounds of logic, and no advantage on grounds of practical convenience, in bringing resources into account as a relevant factor when assessing needs.
It is then open to a local authority to raise the threshold artificially if it does not have sufficient resources to meet the previously assessed need? This is just what Parliament did not intend when enacting section 2 of the Chronically Sick and Disabled Persons Act of 1970. If a local authority could arbitrarily reduce the assessed need by raising the eligibility criteria, the duty imposed by Parliament would, in Mr. Gordon's graphic phrase, be collapsed into a power. The language of section 2 admits of no half-way house.
In the course of the argument it was suggested that "needs" in section 2 might mean "reasonable needs." Mr. Eccles, on behalf of the Council, did not accept this suggestion. But I have no difficulty in reading "needs" as meaning reasonable needs, in the sense that the social worker, in the exercise of his or her judgment, must act reasonably. In any event, if the needs are not reasonable it would not be necessary to make arrangements to meet the needs under the second of the three stages of the exercise. What I cannot accept is that the reasonable needs of the individual require consideration of the local authority's ability to meet those needs.
Mr. Pleming put the same point a different way. He argued that all the relevant circumstances have to be taken into account in assessing an individual's needs, and that among the relevant circumstances are the resources of the local authority. I agree that all the circumstances relating to the individual are to be taken into account. But the local authority's resources are external to the individual. There is nothing in the language of the section which permits, let alone suggests, that external resources are to be taken into account when assessing the individual's needs.
Then it is said that section 2 must be construed in the light of section 29 of the National Assistance Act 1948, to which it refers. I agree. But a consideration of section 29, and the other provisions of Part III of the Act of 1948, which have been analysed in the very recent decision of the Court of Appeal in Reg. v. Hammersmith and Fulham London Borough Council, Ex parte M., The Times, 19 February 1997 leads me in the exact opposite direction to that in which Mr. Eccles would have me go.
Sections 21 to 28 of Part III as originally enacted cover the provision of accommodation. Under section 21 it was the duty of every local authority to provide residential accommodation for those in need of care and attention not otherwise available to them by reason of age, infirmity or any other circumstances. Sections 29 to 31 are concerned with welfare services. They conferred a power on local authorities to promote the welfare of the blind, deaf or dumb and other persons who are substantially and permanently handicapped by illness, injury, congenital deformities or other disabilities. By section 195(6) of and Schedule 23 to the Local Government Act 1972 section 21(1) of the Act of 1948 was amended. It now provides that the local authorities may provide residential accommodation and shall do so if directed by the Secretary of State. The Act of 1972 also made a similar amendment to section 29(1) of the Act of 1948. Thus there are now the same powers under both sections and the same duties if directed by the Secretary of State. But in the meantime Parliament had passed the Act of 1970. Like section 29 of the Act of 1948 sections 1 and 2 of the Act of 1970 are concerned with welfare services. It seems plain enough that the legislative purpose behind sections 1 and 2 was to impose a duty towards the disabled where hitherto there had been no more than a power. That duty was not made dependent on directions having been given by the Secretary of State. So far, therefore, from the inference being that the availability of resources was to remain a proper consideration, the inference is the other way.