Problems with the Meaning of Ordinary Words
| Author | Frederic Reynold |
| Pages | 55-83 |
PART THREE
PROBLEMS WITH THE MEANING OF ORDINARY WORDS
Although concerned with a question of the interpretation of words in a constitution and a statute, the issue in the Trinidad case was only in a limited sense concerned with the meaning of words. In reality it involved something of a theological dispute as to how the exercise in interpretation in a particular context should be approached. Yet research would probably show that the most frequent catalyst for disagreement amongst the Law Lords and their successors, the Supreme Court Justices, would probably turn out to be disagreement as to the meaning or scope of ordinary words: or, to be more specific, as to whether the words in question can apply, or are capable of applying, to particular circumstances. This is not really surprising: the disagreement in such cases is really about what the words ought to mean or to what they ought to apply. The point was frankly made by Lord Neuberger, now President of the Supreme Court, in a case which will be discussed below:
Any reasoned decision as to the meaning of [the relevant statutory provision] risks falling foul of circularity, preconception and arbitrariness. The centrally relevant words “functions of a public nature” are so imprecise in their meaning that one searches for a policy as an aid to interpretation. The identification of the policy is almost inevitably governed ... by one’s notion of what the policy should be, and the policy so identified is then used to justify one’s conclusion.
The cases discussed below illustrate the truth of this observation.
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(1) SUPPORT FOR THE OLD AND INFIRM: THE DUTY OF COUNCILS
Two cases concerned with the scope of duties of local authorities derived from powers acquired under that great flagship of the post-war Labour Government, the National Assistance Act 1948, illustrate the nature of the problems often posed by the use of ordinary words, and the manner in which those problems tend to be resolved.
In the first case a Mr Barry, who was aged 84 and who suffered from a heart condition, was provided with assistance by his local council pursuant to its responsibilities under the Chronically Sick and Disabled Persons Act 1970.
That assistance included cleaning and laundry services. About a year later he was notified by the council that the cleaning and laundry services would be withdrawn. He was told that the reason for this was that there had been a substantial reduction in the funding allocated to the council by central government, and it was no longer possible for the council to meet the demand. Mr Barry applied to the courts for a ruling that the council was not entitled to withdraw those services. Based on the wording of the relevant provision of the 1970 Act (section 2(1)), it was argued on his behalf that the council had been under a duty to make the appropriate arrangements in the light of its previous assessment of his needs. The crucial wording of the relevant provision was as follows:
Where a local authority ... is satisfied ... that it is necessary in order to meet the needs of [a person eligible for assistance] for that authority to make arrangements for the provision of:
(a) practical assistance for that person in his home [and in respect of other matters listed (b) to (h)], ... it shall be the duty of that authority to make those arrangements in exercise of their functions under [the National Assistance Act].
The key words on which the argument hinged were of course “needs”, “necessary” and “duty”. Mr Barry’s application failed at the initial stage, the court holding that the council was entitled to take into account its resources in its assessment of needs; but the Court of Appeal, by a majority decision, concluded otherwise. The council appealed, and the Law Lords, by a majority of three to two, reversed the decision of the Court of Appeal and ruled in favour of the council.
The majority comprised Lords Nicholls, Hoffmann and Clyde. (Lord Hoffmann simply agreed with both his colleagues without delivering a judgment of his own.) Lord Nicholls acknowledged Mr Barry’s argument at first sight to be a “compelling” one. His needs depended on the nature and extent of his disability; not on whether the council had more or less money currently available. His needs had not changed, even if the council’s financial resources had; but Lord Nicholls concluded that this argument was flawed because it failed “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.”
Lord Nicholls goes on to develop the point in the context of the services such as home help, meals on wheels and home adaptation listed under (a) to
(h) in the relevant provision. An assessment of the extent of a “need” for any of those services by the council’s social services committee must depend on the application of its eligibility criteria, and in carrying out its task the council must have regard to the cost of providing a particular service, “[t]he relative cost will be balanced against the relative benefit and the relative need for that benefit”. Once it is accepted, Lord Nicholls concluded, that cost is a relevant factor in assessing a person’s needs in regard to any of the listed services, some evaluation of the impact the cost is likely to have on the council will have to be made. He rejected the suggestion that such a conclusion would deprive the words “it shall be the duty of the [council] to make those arrangements ...” of any value or force. The council was obliged to carry out its function in a rational and responsible fashion.
Lord Clyde’s analysis was essentially the same, but he made the point in a slightly different way. He emphasised that the “duty” only arose if or when the council was “satisfied” that it was “necessary” to make the appropriate arrangements to meet the eligible person’s “needs”. If, or once, that duty did arise, then he would agree that shortage of resources would not excuse a failure to make the arrangements, but the crucial point was that this did not preclude consideration of resources at the earlier stage of the process envisaged by the Chronically Sick and Disabled Persons Act 1970 when the assessment had to be carried out. The words “necessary” and “needs” were both relative expressions, “admitting in each case a considerable range of meaning.” There was, for example, no clear distinction between what was necessary and what was desirable. Everything depended on the criteria set by the council. Cost and resources would always be an element in determining whether a service was “necessary”.
58 Disagreement and Dissent in Judicial Decision-making
Lord Lloyd, with whom Lord Steyn agreed, roundly rejected the majority’s analysis. He pointed out that the relevant provision – section 2(1) – contemplated three separate stages. First, the council had to assess the needs of the eligible person. Second, having identified those needs, the council had to decide whether it was necessary to make arrangements for those needs to be met. (There could be any number of reasons why it might not be necessary to make such arrangements, e.g. the person may have adequate means of his own or his needs were being met by family and friends.) Finally, if the council decided that it was indeed necessary to make arrangements for those needs to be met, the council was under a duty to do so. It was clear that once the council had so decided, the duty was absolute and could not be evaded by pointing to lack of money.
For Lord Lloyd, as indeed was the case for Lord Clyde, it followed that the real question was whether lack of financial resources was a relevant consideration when assessing the needs of the person. He recognised that the word “need” had different shades of meaning; for example, one might say of an overworked colleague that he was in “need” of a holiday, but that was clearly not the sense in which the word was to be understood in the present context: “need” in this context was intended to mean the lack of what is essential for the ordinary business of living. What a disabled person needs would in the simple case be decided by the individual social worker, and in the more complex case there may have to be a so-called comprehensive assessment. In either case the standard against which the social worker assesses the person’s needs are those set by the council’s social services committee, and reflect the standards and views of contemporary society. Lack, or otherwise, of resources simply did not enter into the equation. Resources could of course operate to impose a cash limit on what is provided, but they could not help to measure the need.
Lord Lloyd goes on to illustrate the point by way of a simple example. Suppose there are two people living in different parts of the country with identical disabilities and needs. Council A provides for his needs by arranging meals on wheels four days a week. Council B declines to provide the same service because they say they do not have the money: it cannot be open to them to say that they are going to reduce the person’s needs. His needs remain exactly the same, “[e]very child needs a new pair of shoes from time to time. The need is not the less because his parents cannot afford them.” Lord Lloyd was perfectly happy to read into the word “needs” in section 2(1) the concept of “rea...
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