Judgments - Reg. v. Gloucestershire C.C. and the Secretary of State for Health. Ex parte Barry  continued

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          It was pointed out that the Act of 1970 started life as a Private Member's Bill. So indeed it did. But it received strong all-party support. In any event the fact that the Act of 1970 owed its origin to the initiative of a private Member--Mr. Alf Morris--hardly throws light on its interpretation.

          Simply looking at the language of section 2 of the Act of 1970, against the background of Part III of the Act of 1948, it is clear enough that Parliament did not intend that provision for the needs of the disabled should depend on the availability of resources. The intention was to treat disability as a special case. That is why the Act of 1970 has always been regarded as such an important landmark in the care of the disabled.

          The point becomes all the clearer when one looks at the subsequent legislation, following on the Griffiths Report and the Government White Paper "Caring for People" published in November 1989 (Cm. 849). The disabled might at that stage have been brought back into line with others in need of community care services. But that was not the course which Parliament took when enacting the National Health Service and Community Care Act 1990. Section 47 provides:

    "Assessment of needs for community care services:

 "(1)  Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority (a) shall carry out an assessment of his needs for those services; and (b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.
 "(2)  If at any time during the assessment of the needs of any person under subsection (1)(a) above it appears to a local authority that he is a disabled person, the authority:
    (a) shall proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section; and
    (b) shall inform him that they will be doing so and of his rights under that Act."

It was common ground, as is indeed obvious from the language of section 47(1)(b), that a local authority has a discretion whether to meet a person's needs under section 47(1). In exercising that discretion the local authority is entitled to take its available resources into account. But in sharp distinction, section 47(2) gives the local authority no such discretion. Once it appears that the person in question is disabled, the local authority is bound to decide whether his needs call for the provision of services under section 2 of the Act of 1970. By preserving and reinforcing the beneficial provisions of the Act of 1970, Parliament has underlined its intention to treat the needs of the disabled as a special case in the consideration of which resources play no part. Otherwise, why was it thought necessary to make separate provision for the disabled under section 47(2)?

          There is another point. Section 47(1) contemplates a two-stage process. There is to be an assessment of needs followed by a decision whether to meet those needs. Since resources come in at the second stage, it is difficult to see why resources should also come in when assessing needs at the first stage. But if resources do not come in when assessing needs under section 47(1), how can it be argued that they come in when assessing the needs of the disabled under section 47(2)?

          I return to section 2 to consider a further argument to which Hirst L.J. in his dissenting judgment attached importance. It is necessary to refer in this connection to the list of services set out in section 2 which are as follows:

 "2(1)(a)  the provision of practical assistance for that person in his home;
  (b)  the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;
  (c)  the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;
  (d)  the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;
  (e)  the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;
  (f)  facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise;
  (g)  the provision of meals for that person whether in his home or elsewhere;
  (h)  the provision for that person of, or assistance to that person in obtaining, a telephone and any special equipment necessary to enable him to use a telephone,"

It is argued that the very width of these services indicates that resources must be a relevant consideration. Hirst L.J. [1996] 4 All E.R. 421, 433 put the point as follows:

     "Nor do I consider that the safety-net concept fits several of the individual items in the service list, in particular items (b) to (f) inclusive, which hardly rate as basic requirements, and whose selection would seem to involve choices in which cost would be an inevitable consideration. Despite Mr. Gordon's plea to the contrary, I do not think it proper to ignore the service list when construing the opening words of the section . . ."

I agree with Hirst L.J. that it would not be right to exclude the service list from consideration when construing the opening words of the section. But I do not myself find that they throw much light on the meaning of "need" or on the question whether resources are to be taken into account in assessing an individual's needs. Disabled persons may not need recreational facilities, or a holiday, as often as they will need practical assistance in the home, or the provision of meals. But this does not lead to the conclusion that the assessment of need is dependent on sufficient resources being available. It is not what the section says.

          Like my Lords, I do not find it necessary to refer to the non-statutory guidance issued by the Department. It is conveniently set out in Hirst L.J.'s judgment, at pp. 427-430. I note only that the guidance relates to the provision of community services generally, where resources are admittedly relevant. Where there is specific reference to section 2 of the Act of 1970, the guidance is, from the Council's point of view, at best ambivalent as to whether resources are to be taken into account or not.

          For the above reasons I find myself in full agreement with the judgment of Swinton Thomas L.J. I also agree with the judgment of Sir John Balcombe. His reasoning is criticised in the Council's printed case, because of his acceptance that need is a relative concept, which may vary according to outside circumstances. It would follow that on this view (so it is argued) all outside circumstances should be taken into account, including the local authority's available resources. But when Sir John Balcombe refers, at p. 441, to "outside circumstances" and to need being "a relative concept", it is plain from the very next sentence what he had in mind:

     "Thus, the needs of a disabled person may be assessed differently now than they would have been in years gone by, because standards rise and expectations change."

I agree. But it does not follow that needs today should be assessed differently in different parts of the United Kingdom; and still less does it follow that needs may be assessed differently on the ground that some local authorities (including Gloucestershire) have suffered more than others as a result of central Government's abrupt decision to distribute a special transitional grant for 1994-95 on the basis of standard spending assessments alone, instead of partly on that basis and partly on the basis of historic spending on income support.

          The error in the Council's criticism of Sir John Balcombe's judgment can be illustrated by a single quotation from paragraph 24 of their case:

     "If increased national wealth is relevant in raising standards and expectations, so too should pressure on local resources be admissible in determining whether it is necessary to meet expectations."

The non-sequitur is evident. Parliament cannot have intended that the standards and expectations for measuring the needs of the disabled in Bermondsey should differ from those in Belgrave Square.

          This brings me, last of all, to the wretched position in which the Council now find themselves, through no fault of their own. I have read the affidavits of Mr. Deryk Mead, the Director of Social Services, and Mr. Honey, Chief Executive, with something approaching despair. Equally depressing is the evidence of Margaret Newland, Chair of Age Concern, Gloucestershire, and the numerous letters written by the Council to the Secretary of State. Most depressing of all are the minutes of the Community Care Sub-Committee of the Social Services Committee, especially the meeting held on 14 October 1994, in which members expressed their abhorrence at the choices which the Social Services Department was being required to make. The Chairman commented:

     "It was deplorable that there was no other way forward apart from the exclusion of certain people from access to community care through the device of rationing services."

          By your Lordships' decision today the Council has escaped from the impossible position in which they, and other local authorities have been placed. Nevertheless, I cannot help wondering whether they will not be regretting today's decision as much as Mr. Barry. The solution lies with the government. The passing of the Chronically Sick and Disabled Persons Act 1970 was a noble aspiration. Having willed the end, Parliament must be asked to provide the means.

          I would dismiss the appeal.


My Lords,

          This appeal raises an important point of interpretation of section 2(1) of the Chronically Sick and Disabled Persons Act 1970. Can a local authority properly take into account its own financial resources when assessing the needs of a disabled person under section 2(1)? The appellants, the Gloucestershire County Council and the Secretary of State for Health say yes, the respondent Mr. Barry says no. The question has given rise to a considerable difference of judicial opinion, so I shall give my conclusion in my own words.

          At first sight the contentions advanced on behalf of Mr. Barry are compelling. A person's needs, it was submitted, depend upon the nature and extent of his disability. They cannot be affected by, or depend upon, the local authority's ability to meet them. They cannot vary according to whether the authority has more or less money currently available. Take the case of an authority which assesses a person's needs as twice weekly help at home with laundry and cleaning. In the following year nothing changes except that the authority has less money available. If the authority's financial resources can be properly be taken into account, it would be open to the authority to re-assess that person's needs in the later year as nil. That cannot be right: the person's needs have not changed.

          This is an alluring argument but I am unable to accept it. It is flawed by a failure to recognise that needs for services cannot sensibly be assessed without having some regard to the cost of providing them. A person's need for a particular type or level of service cannot be decided in a vacuum from which all considerations of cost have been expelled.

          I turn to the statute. Under section 2(1) "needs" are to be assessed in the context of, and by reference to, the provision of certain types of assistance for promoting the welfare of disabled persons: home help, meals on wheels, holidays, home adaptation, and so forth. In deciding whether the disability of a particular person dictates a need for assistance and, if so, at what level, a social worker or anyone else must use some criteria. This is inevitably so. He will judge the needs for assistance against some standard, some criteria, whether spoken or unspoken. One important factor he will take into account will be what constitutes an acceptable standard of living today.

          Standards of living, however, vary widely. So do different people's ideas on the requirements of an acceptable standard of living. Thus something more concrete, capable of being applied uniformly, is called for assessing the needs of a given disabled person under the statute. Some more precisely defined standard is required, a more readily identifiable yardstick, than individual notions of current standards of living.

          Who is to set the standard? To this there can be only one answer: the relevant local authority, acting by its social services committee. The local authority sets the standards to be applied within its area. In setting the standards, or "eligibility criteria" as they have been called, the local authority must take into account current standards of living, with all the latitude inherent in this concept. The authority must also take into account the nature and extent of the disability. The authority will further take into account the manner in which, and the extent to which, quality of life would be improved by the provision of this or that service or assistance, at this or that level: for example, by home care, once a week or more frequently. The authority should also have regard to the cost of providing this or that service, at this or that level. The cost of daily home care, or of installing a ground floor lavatory for a disabled person in his home and widening the doors to take a wheelchair, may be substantial. The relative cost will be balanced against the relative benefit and the relative need for that benefit.

          Thus far the position is straightforward. The next step is the crucial step. In the same way as the importance to be attached to cost varies according to the benefit to be derived from the suggested expenditure, so also must the importance of cost vary according to the means of the person called upon to pay. An amount of money may be a large sum to one person, or to one person at a particular time, but of less consequence to another person, or to the same person at a different time. Once it is accepted, as surely must be right, that cost is a relevant factor in assessing a person's needs for the services listed in section 2(1), then in deciding how much weight is to be attached to cost some evaluation or assumption has to be made about the impact which the cost will have upon the authority. Cost is of more or less significance depending upon whether the authority currently has more or less money. Thus, depending upon the authority's financial position, so the eligibility criteria, setting out the degree of disability which must exist before help will be provided with laundry or cleaning or whatever, may properly be more or less stringent.

          I have considered whether, instead of taking into account the actual resources of the paying authority, the significance of cost could be evaluated by some more general criterion, for instance, that there should be attached to cost the weight which would be attributed to the amount in question by any reasonable authority. This could not work. This would be meaningless as a yardstick. What are the resources to be attributed to the hypothetical reasonable authority at any particular time?

          In the course of the argument some emphasis was placed upon a submission that if a local authority may properly take its resources into account in the way I have described, the section 2(1) duty would in effect be limited to making arrangements to the extent only that the authority should decide to allocate money for this purpose. The duty, it was said, would collapse into a power. I do not agree. A local authority must carry out its functions under section 2(1) in a responsible fashion. In the event of a local authority acting with Wednesbury unreasonableness, a disabled person would have a remedy.

          This interpretation does not emasculate section 2(1). The section was intended to confer rights upon disabled persons. It does so by giving them a valuable personal right to see that the authority acts reasonably in assessing their needs for certain types of assistance, and a right to have their assessed needs met so far as it is necessary for the authority (as distinct from others) to do so. I can see no basis for reading into the section an implication that in assessing the needs of disabled persons for the prescribed services, cost is to be ignored. I do not believe Parliament intended that to be the position.

          For these reasons, which are substantially to the same effect as those of my noble and learned friend Lord Clyde, I would allow this appeal and declare that when assessing needs under section 2(1) a local authority may take its resources into account.