Robertson (AP) v Fife Council
30. Prior to the insertion of subsections (3A) and 3(B) by section 2 of the Community Care (Residential Accommodation) Act 1998, the remainder of section 12 dealt with the circumstances in which assistance in kind or cash could be given. In subsection (3) it was provided that before assistance in cash could be given to a person under subsection (1) the local authority had to have regard to his eligibility for assistance from any other statutory body and, if he was so eligible, to the availability to him of that assistance in his time of need. In other words, the function of this subsection was to direct the attention of the local authority to the question whether the person in need was a person "requiring assistance" in cash. In subsection (4) it was provided that assistance given in kind or cash to persons under that section might be given unconditionally or subject to such conditions as to the repayment of the assistance, or of its value, whether in whole or in part, as the local authority might consider reasonable having regard to the means of the person receiving the assistance and to the eligibility of the person for assistance from any other statutory body.
31. That was the state of section 12 at the stage when sections 12A and 13A were inserted into the 1968 Act by sections 55 and 56 of the National Health Service and Community Care Act 1990. The question then is whether, as the Lord President put it at p 715E-F, in performing their duty under section 13A a local authority are to be seen as simultaneously performing their duty under section 12.
32. In my opinion section 12(4) shows that a person in need requiring assistance was not to be denied assistance merely because the means of the person were such that he would be able to repay its value in whole to the local authority. This interpretation is consistent with the guidance on the assessment of the individual needs of adults for community care services which is given in the Social Work Services Group Circular SWSG11/91. Paragraph 11 of the circular states:
33. Section 5(1) provides that local authorities shall perform their functions under the general guidance of the Secretary of State. In R v London Borough of Islington, Ex p Rixon  ELR 66, 71A Sedley J observed that "guidance" is less than "direction", and that the word "general" emphasises the non-prescriptive nature of what is envisaged. But, as he said at p 71C-D, the effect of the statute is that local authorities are required to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course. Lord Bonomy acknowledged at p 722B-C that paragraph 11 could be read as guidance that financial resources are not relevant to the determination whether to provide care in an individual case, but he said that such an interpretation would be inconsistent with the current legislative provisions. In my opinion that is the way in which paragraph 11 should be read, and I also consider that this interpretation of it is consistent with the legislation as properly construed.
34. A comparison of the words used in sections 12(1) and 13A(1) seems to me to indicate that section 13A has characteristics which are defined more narrowly than those in section 12 and that it was intended to be self-contained. First, there are the persons to whom the service may be provided. In the case of section 12, the services mentioned there may be provided to "any relevant person". That expression is defined in section 12(2), which must be read together with the definition of "persons in need" in section 94(1) and the additional provision in section 12(6). But section 13(A)(1) contains its own definition of the persons to whom the services mentioned there may be provided. As it happens, many of the characteristics which are used to describe persons in need for the purpose of the provision of general social welfare services under section 12 appear here also. But there are differences. A person released from prison or other form of detention (see section 12(6)) is not included, for example. Nor is a person in need of care and attention arising out of youth. If the purpose of section 13A was simply to introduce a new kind of social welfare service, to be added to those already available under section 12 and to be made available to the same persons, under the same conditions and in the same way, one would have expected to find that the persons to whom this new service could be provided were the same as those to whom the general range of services could be provided under section 12. But this is not so.
35. There are other signs that section 13A is self-contained and free-standing. Neither section 12 nor section 13A contains words which indicate that the service provided under section 13A is being provided under section 12. The absence of any words to this effect is to be contrasted with the wording of section 13. This section gives power to a local authority to assist persons in need to whom they have provided facilities for the engagement in suitable work to dispose of the produce of their work. It provides:
The words "by virtue of section 12 of this Act" and the reference to "persons in need" provide a clear link to section 12 which is absent from section 13A. Then there is the fact that the service under section 13A involves the provision of accommodation. But, in contrast to the position under section 12, the local authority do not have power to provide the accommodation themselves.
36. So I would answer the first issue in the negative. In my opinion the provision of residential accommodation with nursing under section 13A is a separate exercise from the provision of residential accommodation under section 12. The powers and duties described in these two section are different. The duty to be performed under section 13A is not to be seen as a particular example of the general duties to be performed under section 12 but as a separate and distinct duty. This brings me to the second issue, which is whether the direction in section 12(3A) applies where the issue is not whether the local authority should provide residential accommodation under section 12, but whether they should provide residential accommodation with nursing under section 13A.
The section 12(3A) issue
37. The way in which this issue was dealt with in the Inner House can be seen most clearly from the following passage in the Lord President's opinion at 2001 SLT 707, 715D-F, para 15:
38. This passage contains two propositions with which I must now deal. The first proposition is that when a local authority are performing their duty to provide residential accommodation with nursing under section 13A they are simultaneously performing their duty to provide residential accommodation under section 12. This was a necessary step in the argument that the exercise which is directed by section 12(3A) applies when a local authority are considering whether to provide residential accommodation with nursing under section 13A. Section 12(3A) does not refer to section 13A. It says that the direction applies where the local authority are determining whether to provide a person with residential accommodation for the purposes for section 12. So the only way in which it can be made to apply to section 13A is to say that the duty under section 13A is being performed simultaneously under section 12. The second proposition is that section 12(3A) shows that Parliament envisaged that the local authority would "have regard to" a person's capital when, at the stage of the assessment carried out under section 12A(1)(b), they are determining whether or not the needs of the person call for the provision of residential nursing care. Both the Lord President and Lord Bonomy read section 12(3A) as indicating that a person's capital above the limit could be taken into account in the determination: pp 714A-B, 720J. Lord Weir said at p 724F that he did not construe its terms as a requirement to take capital into account but rather as an instruction to refrain from doing so in a certain context.
39. This issue falls therefore into two parts. The first question that needs to be examined is whether the direction in section 12(3A) applies where the question is whether the local authority should provide a person with residential accommodation with nursing under section 13A. This is the question raised by the words "for the purposes of this section" which qualify the whole of section 12(3A) and (3B). The second question is whether the direction to "disregard" capital under the limit in the determination to which section 12(3A) refers indicates that capital above the limit is to be brought into account at that stage. This is the question raised by the words "shall disregard".(a)
"for the purposes of this section"
40. Section 12(3A) begins with the words:
The question is whether the direction which it contains applies where the local authority are considering whether to provide a person with residential accommodation with nursing under section 13A.
41. For the reasons which I gave when I was considering the first issue, I am of the opinion that the provision of residential accommodation with nursing under section 13A is a separate exercise from the provision of residential accommodation under section 12 and that the powers and duties described in these two section are different. That being so, I see no reason why the words "for the purposes of this section" should not simply be given their ordinary meaning. The direction in section 12(3A) is to be given effect by the local authority when they are considering whether to provide residential accommodation to a person for the purposes of section 12. I do not find in these words any basis for saying that it must be given effect when the local authority are considering whether to provide residential accommodation with nursing under section 13A.
42. A closer examination of the subsection and of its legislative background tends to confirm this approach. The Community Care (Residential Accommodation) Act 1998, which inserted subsections (3A) and (3B) into section 12, was the product of a Private Members Bill. Its principal purpose was to incorporate into section 21 of the National Assistance Act 1948, which applies to England and Wales but not to Scotland, the judgment of the Court of Appeal in R v Sefton Metropolitan Borough Council, Ex p Help the Aged  4 All ER 532. Due to the number of elderly residents in their area the council did not have the financial resources to meet the needs of all those who were entitled to be provided with residential accommodation under section 21 of the 1948 Act as amended by section 42 of the National Health Service and Community Care Act 1990. So they established a system of prioritisation when they were considering the case of elderly persons such as the applicant Mrs Blanchard who were in need of care and attention. They were not considered to be in a priority category for the receipt of financial assistance with the provision of residential accommodation until their capital had fallen below £1,500. The Court of Appeal held that this approach was inconsistent with the statutory scheme laid down by section 22 read with section 26 of the 1948 Act, which provided a different scale from that applied by Sefton. Lord Woolf MR said at p 543h-j:
43. The words "otherwise available" appear in section 21(1)(a) of the 1948 Act. It provides that a local authority in England and Wales are under a duty to provide residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention "which is not otherwise available to them." Section 1 of the 1998 Act has inserted into section 21 two new subsections, subsections (2A) and (2B), which provide that when determining for the purposes of subsection (1)(a) "whether care and attention are otherwise available to a person" so much of the person's capital as does not exceed the capital limit is to be disregarded. The amendment which it made to section 21 is simple and quite straightforward.
44. It appears to have occurred to somebody that the same provision should be extended to Scotland. But the words "which is not otherwise available", which form part of the English legislation, do not appear in section 12. So it was obvious that a different provision would have to be made. The words which were used in place of those used for England are to be found in the opening words of subsection (3A), which state that the direction is to be applied by the local authority "in determining for the purposes of this section whether to provide assistance by way of residential accommodation."
45. At first sight this formula is less precise than that which was used for England and Wales. But I think that the key to its effect is to be found in the use of the words "to provide assistance". As I said earlier when I was analysing section 12(2) in the first issue, a person "in need" must also be a person "requiring assistance" before he satisfies the definition of "a relevant person" and becomes a person to whom the local authority owes the duty described in section 12(1). So in my opinion the direction can be linked with the exercise which is to be carried out under section 12 in a way that is perfectly intelligible. Furthermore, the words "to provide assistance" do not appear anywhere in section 13A, nor do they appear in section 12A. It is, of course, far from clear why the direction was not extended to section 13A which enables a local authority in Scotland to make the same kind of provision as that which local authorities in England and Wales are enabled to do by section 21 of the 1948 Act as amended. But I think that we must take the wording of section 12(3A) as we find it. It cannot be said to be out of place in section 12, and it lacks any indication that it was intended to be applied to a determination whether to provide residential accommodation with nursing under section 13A.(b)
46. The mischief which was identified in R v Sefton Metropolitan Borough Council, Ex p Help the Aged  4 All ER 532 was that the council had taken account of Mrs Blanchard's capital although it was below the limit set by section 22 of the 1948 Act and the 1992 Regulations when they were determining whether the care and attention which she needed was "otherwise available" to her. It was not suggested in that case that the council were not entitled to apply the means test regime provided for in section 22 when they were considering what she should pay for the accommodation. On the contrary, the regulations required them to do so when the exercise required by that section was being carried out. Their error was really twofold. The first error was to take into account capital which was below the limit set by the regulations. The second was to do so not at the charging stage, which is the stage to which the regulations are directed, but when they were considering the prior question whether the care and attention which she required was "otherwise available" to her. The effect of the amendment to section 21 which was made by section 1 of the 1998 Act was to make it clear that capital under the limit set by the regulations was to be disregarded at that earlier stage.
47. The majority in the Inner House read into section 12(3A) and (3B) a direction that the person's capital was to be taken into account by the local authority when they were considering whether the person was in need of assistance by way of residential accommodation. As the Lord President put it at p 714A:
48. I think, with respect, that this reads too much into the words which have been used by Parliament. The words "shall disregard" are clear and unambiguous. The subsections do not say that any capital which the person has which is above the limit is to be taken into account in determining whether to provide assistance. All they say is that capital which is below the limit is to be disregarded for that purpose. That, as I have just suggested, was the mischief in Sefton at which the provisions of the 1998 Act were directed. It was not just that the council in that case had had regard to capital which was below the limit set by the regulations. It was that regard was had by it to that capital at the wrong stage and for the wrong purpose. Capital above the limit would of course have to be taken into account at the stage of charging for the accommodation. The mischief was in taking capital below the limit into account in determining at the earlier stage whether to provide it to the person who was in need of it.
49. It was pointed out in the Inner House that it had not previously been open to a local authority to have any regard whatever to the person's capital when it was considering whether to provide him with assistance by way of residential accommodation under section 12. That indeed is so. The furthest section 12 went in its unamended form was to provide in subsection (4) that a local authority might have regard to a person's means when they were considering whether to provide assistance in kind or in cash unconditionally or subject to conditions as to repayment. The stage to which section 22 of the 1948 Act and the regulations are directed is a different stage. It is the stage of charging for the accommodation which has been provided.
50. The Lord President rejected the argument that subsections (3A) and (3B) were not intended to change the law in this respect. He said that it was necessary to have regard to the Act in its amended form in order to ascertain the intention of Parliament: p 713L-714A. I agree with this approach to interpretation, but it should not be pressed too far. There is no need to look behind the amendments if their effect is clear and there is no question of any ambiguity. But in this case the majority in the Inner House were attributing an intention to Parliament which was not to be found in the language of the amendment. In my opinion it was appropriate in that situation to examine the history of the legislation and the mischief to which the amendment was directed. That exercise reveals the error. In my opinion Lord Weir was right to insist at p 724F that the words used in section 12(3A) could not be construed as a requirement to take capital into account but rather as an instruction to refrain from doing so in a certain context.
The section 12A issue
51. There remains for consideration Mr Bovey's argument that a local authority are entitled to have regard to a person's capital under section 12A(1) of the 1968 Act. This section deals with the duty of the local authority to make an assessment of the person's needs before the provision of any community care service, including the provision of residential accommodation with nursing under section 13A. The exercise which it is required to carry out under this section falls into two stages. The first is to assess the needs of the person for those services: section 12A(1)(a). The second is to decide, having regard to the results of that assessment, whether the needs of that person "call for" the provision of any such services; section 12A(1)(b). It is at the second stage, according to Mr Bovey's argument, that the local authority are entitled to take the person's capital into account.
52. In my opinion the words "call for" are directed to the person's needs for any of the services which the local authority is able to provide, not to the question whether the person is able to pay for them. This is indicated by section 12A(2) which provides that, before deciding under section (1)(b) that the needs of any person call for the provision of nursing care, a local authority shall consult a medical practitioner. The question to which this provision is directed is whether the needs of the person are such as to require the provision of that community care service. Sections 12A(3) and 12A(4) deal with the situation where the assessment of needs reveals that the person is in need of services other than community care services, such as services provided by a Health Board under the National Health Service (Scotland) Act 1978 or under the Disabled Persons (Services, Consultation and Representation) Act 1986. There is no indication anywhere in this section that it is concerned with the person's means or that it is proper to take account of the person's capital at any stage during the exercise of assessment which it requires the local authority to carry out. So I would reject this argument.
53. For these reasons I would hold that the respondents were in error when they refused to make arrangements for the provision to the appellant of residential accommodation with nursing under section 13A. Their error was in taking her capital, including her notional capital, into account when they were assessing her need for the provision of that service. There is no doubt that, subject to section 1 of the Community Care and Health (Scotland) Act 2002 and regulations made under it in regard to the provision of social care, the respondents are entitled to charge for the community care services which they provide. But guiding principle is that the provision of community care services to a person who is in need of them is not related to the ability of the person to meet the costs. The assessment of need and decisions as to whether they call for the provision of any of the community services come first. The assessment of means, and the requirement to pay what the person can afford, comes afterwards. Notional capital can be taken into account at the stage when charges are being made for the services. But it must be left out of account at the earlier stage when decisions are being taken to provide these services. This avoids the prospect of very real hardship which this case has demonstrated.
54. Lastly I should mention that your Lordships' attention was drawn to the Community Care and Health (Scotland) Act 2002 which was passed by the Scottish Parliament on 6 February 2002. It was suggested that section 3 of that Act, which provides for the substitution of four new subsections in section 12 of the 1968 Act in place of subsections (3A) and (3B), had proceeded on the basis of the interpretation which had been given to these provisions by the decision of the Inner House. It is not apparent from the wording of the section that this was so. But in any event it is for your Lordships to say what these provisions mean. So I do not think that any significance can be attached to the meaning which they were understood to have when this legislation was being considered by the Parliament.
55. I would allow the appeal and recall the interlocutor of the First Division of 20 April 2001. I would repel the respondents' second plea in law and sustain the second, third and fifth pleas in law for the appellant. It will be for the Court of Session to make such orders as may be needed to give effect to this decision when a motion is made to apply the judgment under rule 56.1 of the Rules of the Court of Session 1994. The respondents must pay the appellant's costs in this House and in the Court of Session.
LORD HOBHOUSE OF WOODBOROUGH