R (A) v East Sussex County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 17 December 2002 |
| Neutral Citation | [2002] EWHC 2771 (Admin) |
| Docket Number | Case No: CO/4843/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 December 2002 |
[2002] EWHC 2771 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Munby
Case No: CO/4843/2001
Miss Alison Foster QC (instructed by Mackintosh Duncan) for the claimants A and B
Mr Murray Hunt (instructed by Leigh Day & Co) for the claimants X and Y
Ms Beverley Lang QC and Ms Jenni Richards (instructed by the Director of Legal and Community Services) for the defendant
Mr David Wolfe (instructed by Chris Benson) for the interested party
Introduction
A and B are sisters, born in 1976 and 1980, who are thus now 26 and 22 years old respectively. They both suffer from profound physical and learning disabilities and accordingly appear in the proceedings by their litigation friend the Official Solicitor. They have always lived in the family home, which has to an extent been specially adapted and equipped for them and where they are looked after on a full time basis by their mother, X, and their stepfather, Y.
East Sussex County Council ("ESCC") is the relevant local authority owing duties to A and B, in particular under section 29 of the National Assistance Act 1948, section 2 of the Chronically Sick and Disabled Persons Act 1970 and section 47 of the National Health Service and Community Care Act 1990.
Both A and B suffer from greatly impaired mobility. Even the simplest physical movement, for example, getting out of bed or getting into the bath, requires them to be moved and lifted by their carers. Central to all the disputes which have blighted this family's life for so many years now is a fundamental difference of view between X and Y, on the one side, and ESCC, on the other side, as to whether and to what extent this moving and lifting should be done manually, as X and Y would prefer, or, as ESCC would have it, using appropriate equipment.
The litigation
Largely because of this acute difference of view, the care package provided by ESCC during the late 1990s came under stress. On 29 February 2000 proceedings for judicial review (CO/740/2000) were commenced by A, B, X and Y against ESCC in relation to what was alleged to be the on-going failure of ESCC properly to perform its statutory duties. Those proceedings were compromised by a consent order made on 21 July 2000.
Unhappily that did not resolve the continuing differences of view and on 29 November 2001 further proceedings for judicial review (CO/4843/2001) were commenced against ESCC. On this occasion the Disability Rights Commission ("the DRC") was added as an interested party. Permission was granted by Richards J on 20 December 2001. He directed that the matter was to be heard before a nominated judge of the Family Division.
On 19 February 2002 ESCC commenced proceedings under CPR Part 8 in the Family Division, seeking to invoke the court's inherent declaratory jurisdiction in relation to incapacitated adults: see A v A Health Authority [2002] EWHC 18 (Fam/Admin), [2002] Fam 213 and Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam).
Both sets of proceedings came before me on 5 March 2002 when I gave directions, including directions that both matters were to be listed together, that all further applications were to be made either to me or to Wilson J (we being at that time the only judges who were both nominated judges of the Administrative Court and judges of the Family Division), and that the two matters were to be heard by Wilson J starting on 11 June 2002. In fact on 31 May 2002 (neither Wilson J nor I then being available) further directions were given by Richards J, the effect of which was to limit the hearing before Wilson J in June 2002 to the determination of certain specified issues. Wilson J heard the matter in accordance with Richards J's directions over four days from 11–14 June 2002. The elaborate order which he made on 14 June 2002 included directions for the further hearing of the remaining issues. In accordance with those directions the two matters came on for hearing before me on 29 October 2002.
All parties were agreed that I should first try two discrete issues:
i) The first issue ("the user independent trust issue") is whether care staff may lawfully be provided to the family by ESCC by means of a vehicle known as a 'user independent trust'. This raises a short but important point of pure law.
ii) The second issue ("the manual handling issue") concerns the legality of what is said to be ESCC's policy of not permitting care staff to lift A and B manually. This is a much more complicated issue, raising, on one view of the matter, difficult questions of law (by which I mean domestic law, human rights law and European Community law), of policy and of fact.
The trial of these two issues alone lasted six days. At the conclusion of the hearing on 11 November 2002 I reserved judgment, having made an order regulating, amongst other things, the interim arrangements that were to be put in place pending the handing down of my judgment and, thereafter, pending the further hearing which will almost certainly be necessary whatever my decision on the first two issues.
In the event it is convenient for me to give separate judgments on these two issues. This judgment is accordingly confined to the user independent trust issue. I will subsequently deliver judgment on the manual handling issue.
The statutory setting
Section 29(1) of the National Assistance Act 1948 (as amended) provides that:
"A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged eighteen or over who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister."
The relevant approvals and directions are those given by the Secretary of State on 17 March 1993 and contained in Appendix 2 to LAC(93)10. Paragraph 2(1) provides as follows:
"The Secretary of State hereby approves the making by local authorities of arrangements under section 29(1) of the Act for all persons to whom that subsection applies and directs local authorities to make arrangements under section 29(1) of the Act in relation to persons who are ordinarily resident in their area for all or any of the following purposes:
(a) to provide a social work service and such advice and support as may be needed for people in their own homes or elsewhere;
(b) to provide, whether at centres or elsewhere, facilities for social rehabilitation and adjustment to disability including assistance in overcoming limitations of mobility or communication;
(c) to provide, whether at centres or elsewhere, facilities for occupational, social, cultural and recreational activities and, where appropriate, the making of payments to persons for work undertaken by them."
Section 2(1) of the Chronically Sick and Disabled Persons Act 1970 provides in relevant part that:
"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; …
(e) the provision of assistance for that person in arranging for the carrying out of works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience; …
then … it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29."
Section 47 of the National Health Service and Community Care Act 1990 provides in relevant part that:
" … 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 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."
Section 46(3)(a) defines "community care services" for this purpose as including services which a local authority may provide or arrange to be provided under section 29 of the 1948 Act.
Thus it can be seen that ESCC has the power under the 1948 Act and is under a duty pursuant to both the 1948 Act and the 1970 Act to "make arrangements" to provide A and B with services, facilities and support of the relevant kind.
So much for the general scheme of the legislation.
The issue
Services under section 29 of the 1948 Act can be provided by the local authority itself, that is, by the local authority using its own employees and staff. In certain circumstances, as we will see, those services can also be supplied by other means. The issue in the present case is whether it is lawful, that is, whether it is intra vires, for a local authority to...
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