R v Sefton MBC ex p Help the Aged and Charlotte Blanchard
Court of Appeal
Lord Woolf MR, Roch and Henry LJJ
31 July 1997
Local authorities are entitled to take into account their own financial resources in deciding whether applicants for assistance under National Assistance Act 1948 s21 require ‘care and attention’ which is not ‘otherwise available’, but are not entitled to refuse to provide residential accommodation because of lack of resources to persons who qualify as requiring ‘care and attention’ under their own criteria, even if such persons are financially able to purchase residential accommodation privately (providing they pass the means test at National Assistance Act 1948 ss22 and 26 and the National Assistance (Assessment of Resources) Regulations 1992 SI No 2977).
Facts
A local authority which provides residential accommodation under National Assistance Act 1948 (NAA) Part III is required to charge the full cost to the local authority of providing such accommodation to residents with capital exceeding £16,000. Other residents are means-tested in accordance with the National Assistance (Assessment of Resources) Regulations 1992 SI No 2977. Under these regulations, capital below £10,000 is disregarded, but capital between £10,000 and £16,000 is deemed to produce a notional weekly income of £1 per £250 of capital. As a result of means-testing residents pay a proportion of the accommodation costs. The balance of the total cost of providing the accommodation is borne by the local authority. There was high demand in the area of the respondent authority for residential accommodation from persons whose capital was £16,000 or less. The respondent authority considered that the marginal cost of providing residential accommodation to such persons exceeded the financial resources available to it. The respondent authority accordingly adopted a comprehensive money saving policy, two aspects of which were subject to challenge in this case. First, the respondent authority determined, as a general but not inflexible rule, not to provide residential accommodation to any person already in a residential or nursing home pursuant to private arrangements until such person’s capital fell to below £1,500. Secondly, the respondent authority considered the position of persons, already in residential accommodation provided by a third party pursuant to arrangements made by the respondent under NAA 1948 ss21 and 26, who receive an addition to their capital which took it over £16,000. The respondent authority determined, as a general but not inflexible rule, to treat such persons as ceasing to occupy their accommodation on the basis that it was provided under NAA 1948 Part III and as becoming liable to pay the home-owner privately until their capital falls to below £1,500.
Held:
1Having regard to the reasoning of Lord Nicholls of Birkenhead and Lord Clyde in R v Gloucestershire CC and Secretary of State for Health ex p Barry (1997) 1 CCLR 40 the Court of Appeal felt compelled to conclude that there is a limited subjective element in making an assessment of whether a person has a need for care and attention for the purposes of NAA 1948 s21. Accordingly, while there are significant differences in emphasis between the language of NAA 1948 s21 and that contained in Chronically Sick and Disabled Persons Act 1970 s2, considered by the House of Lords in ex parte Barry, the respondent was entitled to have regard to its limited financial resources in deciding whether applicants seeking residential accommodation were in need of care and attention. 2In this case, however, the individual applicant’s personal circumstances were such that by reason of her age and state of health she plainly met the respondent’s criteria for being a person in need of care and attention. Accordingly, by virtue of NAA 1948 s21, the respondent was under a duty to make arrangements to provide her with residential accommodation. Once the duty arose in this way it was not lawful to refuse to perform it because of a shortage of resources.
3The regime in NAA 1948 s22, read with NAA 1948 s26 and the National Assistance (Assessment of Resources) Regulations 1992, provides a scale for judging a person’s ability to pay for residential accommodation. This statutory scheme rests upon the assumption that ‘care and attention’ is not to be regarded as ‘otherwise available’ by way of private purchase to persons who are financially eligible according to the means-test regime provided. The respondent was not entitled to provide its own scale for judging a person’s ability to pay and to refuse to provide residential accommodation to persons who by reference to the statutory scheme were to be considered as unable to pay for it themselves.
4Guidance under Local Authority Social Services Act 1970 s7 cannot affect the interpretation of legislation.
5The charity, Help the Aged, had locus standi to make an application for judicial review of the respondent’s policies.
Cases referred to in judgment:
R v Gloucestershire CC and Secretary of State for Health ex p Barry (1997) 1 CCLR 40; [1997] 2 WLR 459, HL.
Legislation/guidance referred to in judgment:
National Assistance Act 1948 ss21, 22 and 26 – National Health Service and Community Care Act 1990 ss46(3) and 47 – Local Authority Social Services Act 1970 ss2 and 7 and Sch 2 – Disabled Persons (Services, Consultation and Representation) Act 1986 s4 – Chronically Sick and Disabled Persons Act 1970 s2 – Secretary of State’s Approvals and Directions under s21(1) of the National Assistance Act 1948 at Appendix 1 to LAC(93)10 – National Assistance (Assessment of Resources) Regulations 1992 SI No 2977 – National Assistance (Assessment of Resources) (Amendment) Regulations (No 7) 1996 SI No 602 – Community Care in the Next Decade and Beyond (the Policy Guidance) (LASSA Guidance, November 1990) – LAC (92)19 Charging for Residential Accommodation.
This case also reported at:
[1997] 4 All ER 532; (1997) Times, 23 August, CA.
Representation
R Drabble QC, H Mansfield and A Sharland (instructed by Jean Gould, Public Law Project) appeared on behalf of Help the Aged and Charlotte Blanchard.
A Gilbart QC and J Barrett (instructed by Sefton Metropolitan Borough Council) appeared on behalf of Sefton Metropolitan Borough Council.
Judgment
LORD WOOLF MR: As both parties acknowledge this is a test case which is of considerable significance for both elderly members of the community and local authorities. It raises three issues:
(1)Whether a local authority in deciding if an elderly person is in need of care and attention, in which case it will be required to make arrangements for residential accommodation to be made available for her, is entitled under Section 21(1) of the National Assistance Act 1948 (as amended) (the 1948 Act) to have regard to its limited financial resources.
(2)If its limited resources are relevant do they justify the policy which Sefton has adopted.
(3)Whether, in determining if ‘care and attention is not otherwise available to a person’ an Authority is entitled to take the resources of that person into account even though that person’s resources fall below the levels prescribed by Regulations for the purposes of Sections 22–26 of the 1948 Act.
The Sefton Metropolitan Council (‘Sefton’) recognises that, if its arguments are correct and these issues have to be determined in its favour, this will have serious financial implications for the elderly who reside within its locality. However Sefton emphasises it recognises the importance of giving assistance to all persons who require the help of its social services, but regrets that because of the other demands upon its limited resources, it has no alternative but to restrict the assistance which it provides for the elderly.
The Legislation
In order to understand the issues that arise on this appeal it is necessary to refer to the relevant legislation and a recent decision of the House of Lords which was of significant importance in persuading Jowett J to give a judgment in the court below in favour of Sefton. The convenient starting point in considering the legislation, is the National Health Service and Community Care Act 1990 (the 1990 Act). Section 47 of the Act deals with the assessment of needs for community care services. Section 47(1) provides :
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
I draw attention to the fact that under (b), it is having regard to the results of the assessment, that the decision is to be reached.
Section 46(3) states that in that section ‘community care services’ means services which a local authority may provide or arrange to be provided under … ‘(a) Part III of the National Assistance Act 1948.’ Section 47 (6) of the Act provides that ‘community care services have the same meaning in that section as in section 46’.
It is next necessary to refer to the two sections which are at the heart of this appeal. They are section 21 and 22 of the 1948 Act. Section 21 of the 1948 Act is in these terms:
21 (1) [Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing] – [emphasis added]
(a) residential accommodation for persons [aged 18 or over] 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 …
(2) In [making any such arrangements a local authority shall have regard to welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection.] …
(4) [Subject to the provisions of section 26 of this Act] accommodation provided by the local authority in the exercise of their [functions under this section] shall be provided in premises managed by the authority or, to such extent as may be [determined in accordance with the arrangements] under this section, in such premises managed by another local authority as may be agreed between the two authorities and on such terms, including terms as to the reimbursement of expenditure incurred by the said other authority, as may be so agreed.
The wide terms of Section 21(2) should be noted.
Section 22 as its heading states, deals with the charges to be made by the Authority for accommodation. It does so in precise terms which enable the Secretary of State to control the amount of the charges by regulations. It reads:
22(1) [Subject to section 26 of this Act, where a person is provided with accommodation under this Part of this Act the local authority providing the accommodation shall recover from him the amount of the payment which he is liable to make] in accordance with the following provisions of this section.
(2) Subject to the following provisions of this section, the payment [which a person is liable to make] for any such accommodation shall be in accordance with a standard rate fixed for that accommodation by the authority managing the premises in which it is provided [and that standard rate shall represent the full cost to the authority of providing that accommodation].
(3) Where a person for whom accommodation in premises managed by any local authority is provided, or proposed to be provided, under this Part of this Act satisfies the local authority that he is unable to pay therefore at the standard rate, the authority shall assess his ability to pay …, and accordingly determine at what lower rate he shall be liable to pay for the accommodation.
(4) In assessing for the purposes of the last foregoing subsection a person’s ability to pay, a local authority shall assume that he will need for his personal requirements such sum per week as may be prescribed by the Minister or such sum as in the special circumstances the authority may consider appropriate.
[(4A) Regulations made for the purposes of subsection (4) of this section may prescribe different sums for different circumstances.]
(5) In assessing as aforesaid a person’s ability to pay, a local authority shall give effect to [regulations made by the Secretary of State for the purposes of this subsection] [except that, until the first such regulations come into force, a local authority shall give effect to Part III of Schedule 1 to the Supplementary Benefits Act 1976 as it had effect immediately before the amendments made by Schedule 2 to the Social Security Act 1980].
Section 26 deals with the situation where the accommodation, instead of being provided by the local authority, is (as in this case) provided by voluntary organisations. Mr Gilbart QC did not submit on behalf of Sefton that the fact that the accommodation was provided by a voluntary organisation affected the situation. So far as relevant Section 26 provides:
(1) … arrangements under section 21 of this Act may include arrangements made with a voluntary organisation …
(1A) … arrangements made with any voluntary organisation or other person by virtue of this section must, if they are for the provision of residential accommodation with both board and personal care for such persons as are mentioned in section 1(1) of the Registered Homes Act 1984 (requirement for registration), be arrangements for the provision of such accommodation in a residential care home which is managed by the organisation or persons in question, being such a home in respect of which that organisation or person –
(a) is registered under Part I of that Act, …
(2) Any [arrangements made by virtue of … this section] shall provide for the making by the local authority to [the other party thereto] of payments in respect of the accommodation provided at such rates as may be determined by or under the arrangements [and subject to subsection 3(A) below the local authority shall recover from each person for whom accommodation is provided under the arrangements the amount of the refund which he is liable to make in accordance with the following provisions of this section].
(3) [Subject to subsection (3A) below], a person for whom accommodation is provided under any such arrangements shall, in lieu of being liable to make payments therefor in accordance with section 22 of this Act, refund to the local authority any payments made in respect of him under the last foregoing subsection:
Provided that where a person for whom accommodation is provided, or proposed to be provided, under any such arrangements satisfies the local authority that he is unable to make a refund at the full rate determined under the subsection, subsection (3)–(5) of section 22 of this Act shall, with the necessary modifications, apply as they apply where a person satisfies the local authority of his inability to pay at the standard rate as mentioned in the said subsection (3).
The Registered Homes Act 1984 (the 1984 Act) referred to in Section 26 of the 1948 Act deals with registration of residential care homes in these terms:
1(1) Subject to the following provisions of this section, registration under this Part of this Act is required in respect of any establishment which provides or is intended to provide, whether for reward or not, residential accommodation with both board and personal care for persons in need of personal care by reason of old age, disablement, past or present dependence on alcohol or drugs, or past or present mental disorder.
The National Assistance (Assessment of Resources) Regulations 1992 dealt with the assessment of the resources of a ‘resident’, that is ‘a person provided with accommodation under Part III of the Act’. Part III includes Sections 21–26 of the 1948 Act. The relevant regulations are contained in paragraphs 20–28 of the Regulations. The effect of paragraph 20 of the Regulations as amended, is that no resident is to be assessed as unable to pay for his accommodation at ‘a standard rate’ if his capital exceeds £16,000. Paragraph 28 deals with those whose capital is between £10,000 and £16,000 and they are treated as having equivalent weekly income of £1 for each complete £250 in excess of £10,000. Under £10,000 capital is to be ignored.
Prior to 1993, financial assistance under Section 21 was provided on a national basis. The financial support of claimants was dealt with at one time in accordance with the supplementary benefits scheme and subsequently in accordance with the income support scheme. The 1990 Act transferred the responsibility for providing financial assistance to the local authorities. For this purpose they were given resources by central government. Local authorities were obliged by Section 7(1) of the Local Authority Social Services Act 1970:
… in the exercise of their social services functions … [to] act under the general guidance of the Secretary of State.
Relevant guidance was contained in ‘Community Care the Next Decade and Beyond: Policy Guidance (1990)’ and LAC(92)19, ‘Charging for Residential Accommodation’.
Paragraph 3.31 of the Guidance provides
The provision of services, whether or not the local authority is under a statutory duty to make provision, should not be related to the ability of the users or their families to meet the costs, and delegated budgeting assistance should take this into account. The assessment of financial means should therefore follow the assessment of need and decisions about service provision.
The introductory section of LAC(92)19 states that the charging rules ‘will apply to all those for whom local authorities make arrangements under Sections 21 and 26 (1948 Act)’.
Although this cannot affect the interpretation of the legislation there is no doubt that the Department of Health did not intend local authorities to take into account the limits on their financial resources when funding residential care. This is made clear in a letter written by the Department to the Chairman of Sefton’s Social Services Committee on the 23rd December 1996. The Department contended that the resources made available by central government had been increased for this purpose. However Sefton are in a particularly difficult situation because part of the Borough, namely Southport, attracts into the Borough a large number of elderly residents and another part of the Borough has a community which is disadvantaged. As a result the calls on Sefton’s resources available to meet needs in relation to accommodation are subject to greater demands than is the case with other counciIs.
Background Facts
The approach of Sefton faced with these difficulties is set out in an affidavit of Mr Alan Lewis, Director of Social Serviccs Department. He states:
Individuals whom the Council feel may require community care services are assessed irrespective of their means or of the Council’s resources. Their needs are identified and the best way of meeting those needs is established in consultation with the potential service user and their carers. However, the Council then has no alternative other than to seek to arrive at a sensible prioritisation of persons in need against the background of its available resources.
Sefton has prepared a document which sets out the criteria to be applied by community care panels for the purpose of assessing the elderly. This states:
2. Because the number of people being assessed as requiring nursing, residential or care packages exceeds the budget available, panels have been established to approve expenditure on community care services within a budget allocation.
5. The consequence of this has been that older people not at immediate risk, have not been as high a priority, with the result that many older people have now been waiting for up to 12 weeks for funding. Some (A) are living in the community, some (B) are in hospital and some (C) are already placed in residential or nursing homes. The panels each week prioritise from all 3 categories based on factors including dependency levels, likelihood of deterioration, duration of proposed placement (particularly those who have a diagnosed terminal illness) as well as risk and probability of breakdown in carer support.
Then under the heading of ‘application of priority criteria’ it is stated with regard to category (C):
8(C) Some older people are currently placed in residential or nursing homes and have been funding their own care because they had capital over £8,000 at the time they were admitted. However, those whose capital has now fallen below £8,000 are entitled to some funding from the local authority but as they are in a safe and appropriate environment, must be lower priority than those at risk or inappropriately placed in a hospital. Nevertheless, the anxiety of reducing capital as well as the indviduals having to fund their own care has to be considered. [emphasis added]
Then under proposals it is stated:
10. For those who are self funding in residential or nursing care, they should be considered within the Priority Category once their capital has fallen below £1,000 and this would prevent them falling into debt.
The figure of £1,000 has since been increased to £1,500 and the figure of £8,000 is now £10,000 under the amended Regulations.
There are proposals of a different nature to give priority to categories (A) and (B) but they are of no relevance to the present application and nothing I say in this judgment should be regarded as commenting favourably or unfavourably on the lawfulness of Sefton’s policy in relation to those categories.
The policy of Sefton resulted in Help the Aged, the well known charity, making an application for judicial review. Help the Aged is closely involved with the elderly and no suggestion is made that they do not have the necessary standing to make this application for judicial review. In addition to Help the Aged there were two individual applicants, one of whom is Charlotte Blanchard. We are not concerned with the other applicant.
Mrs Blanchard is 87 years old. On the 3rd March 1996 she was admitted to hospital following a fall. In hospital she was very ill. In May 1996 she was well enough to leave hospital but still very far from well and required residential nursing care and she was admitted to a nursing home. At that time she had capital of approximately £17,500. In June 1996 her capital fell below £16,000 and a request was made for an assessment of her needs and the arrangements which they called for. This was conducted. It concluded that she had a number of unfortunate difficulties, including an inability to stand unaided, and that she needed supervision or help to maintain her personal safety and to participate in leisure activities and a lot of help to manage medication. Her need for ‘continuing nursing care’ was assessed in the highest category as were a number of her other needs. A need for nursing care involves a higher category of need, than that for care and attention.
Her case was first presented to Sefton’s Allocation Panel on the 26th June 1996 but was deferred until her capital fell below £1,500 on the 14th May 1997. After this had happened, Sefton started funding her accommodation. Mr Gilbart QC on behalf of Sefton rightly says there was no question of Mrs Blanchard not in fact receiving the care she needed although this was provided at her expense until May of this year.
On the 26th March 1997 Jowett J gave a reserved judgment dismissing the application for judicial review.
The Issues
Between the date of the hearing and the judgment being given, the House of Lords decided R v Gloucestershire County Council and Anr ex parte Barry [1997] 2 WLR 459; (1997) 1 CCLR 40. This decision was clearly highly influential in the judge reaching his decision. However he did not have the benefit of argument as to the relevance to this case of the approach of the majority of the Lordships in that case.
The Barry case was not concerned with Section 21(2) of 1948 Act. It was primarily concerned with Section 2(1) of the Chronically Sick and Disabled Persons Act 1970. Section 2(1) is a long and detached subsection but as it has to be compared with section 21 of the 1948 Act I set out its terms in full.
2(1) 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 – (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,
then, notwithstanding anything in any scheme made by the authority under the said section 29, but subject to the provisions of section 35(2) of that Act (which requires local authorities to exercise their functions under Part III of that Act under the general guidance of the Secretary of State and in accordance with the provisions of any regulations made for that purpose), it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29.
There are obvious distinctions between the language of Section 2(1) of the 1970 Act and Sections 21 and 22 of the 1948 Act with which we are primarily concerned on this appeal. However it will be noted the words ‘necessary in order to meet the needs of that person’ are not dissimilar to the words ‘in need of care and attention’ in Section 21. The presence of the word ‘necessary’ in the former does however provide an emphasis which is absent from Section 21 of the 1948 Act. It will be also noted that many of the matters dealt with by Section 2(1), while very important to the recipient, are not of the same significance as accommodation itself which is dealt with in Section 21.
The issue in Barry was whether a local authority can properly take into account its own financial resources when assessing the needs of a disabled person under Section 2(1) of the 1970 Act. That is very much the same as the first issue which arises on this appeal. The majority of their Lordships (Lord Nicholls of Birkenhead, Lord Clyde and Lord Hoffmann agreeing with the speeches of Lord Nicholls and Lord Clyde) answered the issue in the affirmative. It is important to note the reasoning by which Lord Nicholls and Lord Clyde came to this conclusion. Lord Nicholls said [(1997) 1 CCLR 40 at pp49C–50A]:
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 taken into account, it would be open to the authority to reassess 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 requirement of an acceptable standard of living. Thus something more concrete, capable of being applied uniformly, is called for when 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.
Lord Clyde said [(1997) 1 CCLR 40, at pp54I–55F]:
The words ‘necessary’ and ‘needs’ are both relative expressions, admitting in each case a considerable range of meaning. They are not defined in the Act and reference to dictionary definitions does not seem to me to advance the construction of the subsection. In deciding whether there is a necessity to meet the needs of the individual some criteria have to be provided. Such criteria are required both to determine whether there is a necessity at all or only, for example, a desirability, and also to assess the degree of necessity. Counsel for [Mr Barry] suggested that a criterion could be found in the values of a civilised society. But I am not persuaded that that is sufficiently precise to be of any real assistance. It is possible to draw up categories of disabilities, reflecting the variations in the gravity of such disabilities which could be experienced. Such a classification might enable comparisons to be made between persons with differing kinds and degrees of disability. But in determining the question whether in a given case the making of particular arrangements is necessary in order to meet the needs of a given individual it seems to me that a mere list of disabling conditions graded in order of severity will still leave unanswered the question at what level of disability is the stage of necessity reached. The determination of eligibility for the purposes of the statutory provision requires guidance not only on the assessment of the severity of the condition or the seriousness of the need but also on the level at which there is to be satisfaction of the necessity to make arrangements. In the framing of the criteria to be applied it seems to me that the severity of a condition may have to be matched against the availability of resources. Such an exercise indeed accords with everyday domestic experience in relation to things which we do not have. If my resources are limited I have to need the thing very much before I am satisfied that it is necessary to purchase it. It may also be observed that the range of the facilities which are listed as being the subject of possible arrangments, ‘the service list’, is so extensive as to make it unlikely that Parliament intended that they might all be provided regardless of the cost involved. It is not necessary to hold that cost and resources are always an element in determining the necessity. It is enough for the purposes of the present case to recognise that they may be a proper consideration. I have not been persuaded that they must always and necessariIy be excluded from consideration. Counsel for [Mr Barry] founded part of his submission on the claim that on the appellants’ approach there would be an unmet need, but once it is recognised that criteria have to be devised for assessing the necessity required by the statutory provision it will be possible to allege that in one sense that will be an unmet need. But such an unmet need will be lawfully within what is contemplated by the statute. On a more exact analysis, whereby the necessity is measured by the appropriate criteria, what is necessary to be met will in fact be met and in the strict sense of the words no unmet need will exist.
When those passages in the speeches of Lord Nicholls and Lord Clyde are considered, it is easy to see how they could be translated to the words ‘in need of care and attention’ in Section 21 of the 1948 Act. However when you also consider how Sefton devised its policy it is clear they can have no application to that policy. Sefton’s policy is not to use its financial position to provide a standard against which to assess ‘need’ but to defer consideration and payment (because of its lack of resources) where it accepts that there is a need of care and attention. Whatever context is given to the word need, their policy would still apply to Mrs Blanchard.
Lord Clyde also dealt in his speech with the question of the relationship between Section 47(1) and (2) of the 1990 Act and Section 2(1) of the Act of 1970. He came to the conclusion that Section 47 was not inconsistent with the contention of Gloucestershire that its available resources were a relevant consideration in determining its responsibilities under Section 2(1) of the 1970 Act. Lord Clyde rejected any argument in favour of Mr Barry based on Section 47. I therefore, in agreement with Jowett J, would not base an argument in favour of the applicants on this appeal on the language of Section 47. I do however note that Lord Clyde was clearly influenced in coming to his conclusion by the relationship between Section 2(1) of the Act and Section 29 of the 1948 Act. In relation to Section 29 as he points out (p474D; (1997) 1 CCLR 40, at p54B) ‘it was proper for a local authority to take into account the extent of the resources which were available to it’. So in approaching Section 2(1) of the Act of 1970, set in the context of Section 29, one would expect that the extent of available resources would remain a proper consideration, or at least, if for some reason at any stage of the operation of the provision of Section 2(1) no regard was to be paid to consideration of available resources, that would be made very clear in the terms of the Section. Section 29 of the 1948 Act, is in a group of sections in Part III of the Act under the heading Welfare Services. Sections 21–26 which we are concerned with in this case are on the contrary concerned with the provision of accommodation. Caution therefore has to be exercised before applying the interpretation of ‘needs’ in Section 29 to Section 21. As Lord Clyde also stated:
The words ‘necessary’ and ‘needs’ are both relative expressions, admitting in each case a considerable range of meaning.
This is important because there are undoubted difficulties in adopting the general approach as to the elasticity of ‘necessary’ and ‘needs’ referred to by Lord Nicholls and Lord Clyde to the words ‘in need of care and attention’ which appear in Section 21(1) of the 1948 Act. Under Section 2(1) of the Act of 1970, the obligation of the authority only arose if the authority were satisfied that not only would the services described in the Section meet the needs of the person concerned but that it was necessary for the services to be provided in order to meet those needs. In the case of Section 21 once the authority has come to the conclusion that the person concerned is in need of care and attention, which is not otherwise available to them, then the residential accommodation is to be provided.
As Mr Drabble QC submits on behalf of Mrs Blanchard there cannot be any doubt that she is in need of care and attention. While I fully accept in accordance with the decision in Barry, that it is possible to perform a cost benefit analysis in relation to a person’s needs for services listed in Section 2(1) and then decide if they are necessary, taking into account the resources of the authority, I find it very much more difficult to perform the same exercise when deciding whether a person is in need of care and attention. However, having regard to the reasoning of Lords Nicholls and Clyde I am compelled to conclude that there is a limited subjective element in making the assessment of whether the ailments of the person concerned do or do not collectively establish a need for care and attention. I therefore determine the first issue in the affirmative. However in this case it is clear from the evidence that Sefton accepted that Mrs Blanchard met its own threshold as a person in need of care and attention. What it was seeking to do was to say that because of its lack of resources notwithstanding this it was not prepared to meet the duty which was placed upon it by the Section. This it was not entitled to do. There is nothing in the speeches in the House of Lords in Barry to indicate to the contrary. Lord Clyde in fact makes this clear in relation to Section 2(1) of the Act of 1970 when he says (at p474G) [(1997) 1 CCLR 40, at p54F]:
The right given to the person by section 2(1) of the [Act of 1970] was a right to have the arrangements made which the local authority was satisfied were necessary to meet his needs. The duty only arises if or when the local authority is so satisfied. But when it does arise then it is clear that a shortage of resources will not excuse a failure in the performance of the duty.
So here, the local authority was satisfied that Mrs Blanchard was ‘in need of care and attention’ and that being so, unless it can rely on the words ‘which is not otherwise available to them’ it was under an obligation to fulfil its duty and a lack of resources was no excuse. The second issue is therefore to be determined adversely to Sefton.
Sefton cannot succeed because of the effect of its resources on the requirement of ‘need’. Can it succeed because the accommodation has to be ‘not otherwise available to the individual seeking to rely on Section 21’? If Mrs Blanchard had had no capital, Sefton would, notwithstanding its lack of resources, have undoubtedly performed its Section 21 duty. Its refusal to do so was not dependent upon her condition, but her capital resources. This is demonstrated by the fact that once her capital resources were reduced below £1,500 it provided the financial assistance that she was seeking. Sefton waited until her resources fell below £1,500. The regime provided for under Section 22 read with Section 26 provided a different scale for judging a person’s ability to pay. I am satisfied that Sefton was not entitled to provide its own scale. The approach of Sefton totally defeats the intent of Section 22. Sections 22 and 26 and the Regulations determine Sefton’s liability once Mrs Blanchard’s capital fell below £16,000, Sefton then became under an obligation to provide financial assistance. The statutory scheme rests upon the assumption that care and attention is not to be regarded as ‘otherwise available’ if the person concerned is unable to pay for it according to a means-tested regime provided for in Section 22. Section 22(5) requires Sefton to give effect to the Regulations and this Sefton has not done. So the third issue must also be decided adversely to Sefton. Any other approach is incompatible with the language of the relevant statutory provisions.
I would therefore allow the appeal. I do so not because of any Wednesbury approach (which was not relied on by Mr Drabble) but because any appropriate application of the language of the statutory provisions to the facts of this case does not allow any other result. I would welcome submissions by counsel as to what relief, if any, it is necessary for this court to grant.
LORD JUSTICE ROCH: I agree.
LORD JUSTICE HENRY: I also agree.
Order:Appeal allowed. Minute of order to be provided regarding declaration and costs. Legal Aid Taxation of Appellant’s costs. Leave to appeal to House of Lords refused.