R v Gloucestershire County Council and Another, ex parte Barry ; Same v Same

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD LLOYD OF BERWICK,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HOFFMANN,LORD CLYDE
Judgment Date20 Mar 1997
Judgment citation (vLex)[1997] UKHL J0320-1

[1997] UKHL J0320-1

HOUSE OF LORDS

Lord Lloyd of Berwick

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hoffmann

Lord Clyde

Regina
and
Gloucestershire County Council and the Secretary of State for Health
(Appellants)
Ex Parte Barry (A.P.)
(Respondent)
Regina
and
Gloucestershire County Council
(Appellants)

and another

Ex Parte Barry (A.P.)
(Respondent)

(Conjoined Appeals)

LORD LLOYD OF BERWICK

My Lords,

1

Under section 29 of the National Assistance Act 1948 as originally enacted local authorities had the power to make arrangements for promoting the welfare of disabled persons. Under section 1 of the Chronically Sick and Disabled Persons Act 1970 local authorities were, for the first time, placed under a duty to inform themselves of the need for making arrangements for disabled persons within their area. Section 2 of the Act of 1970, on which the present appeal turns, provides that where a local authority is satisfied in the case of a disabled person within their area that it is necessary to make arrangements in order to meet the needs of that person, then the local authority is under a further duty to make those arrangements. It was common ground that the duty imposed on the local authority under section 2 of the Act of 1970 is a duty owed to the disabled person individually. In that respect section 2 is almost unique in the field of community care, the only other example of such a duty (so it was said) being section 117 of the Mental Health Act 1983.

2

Mr. Michael Barry lives in Gloucestershire. He was born in 1915, so he is coming up for his 82nd birthday. In the summer of 1992 he spent a short spell in Gloucestershire Royal Hospital suffering from dizzy spells and nausea. He was told that he had suffered a slight stroke. He has also had several heart attacks, and cannot see well. After discharge from hospital, he returned home, where he lives alone. He gets around by using a zimmer frame, as a result of having fractured his hip several years ago. He has no contact with any of his family. But two friends call from time to time to do things for him. On 8 September 1992 he was referred to the Social Services Department of Gloucestershire County Council ("the Council"). On 15 September his needs were assessed as follows:

"Home care to call twice a week for shopping, pension, laundry, cleaning. Meals-on-wheels four days a week."

3

The Council arranged to provide these services. Nearly a year later, on 3 August 1993 Mr. Barry received a routine visit from the Social Services Department. His needs were assessed as being the same.

4

Then on 29 September 1994 Mr. Barry received a letter from the Council regretting that they would no longer be able to provide Mr. Barry with his full needs as assessed. Cleaning and laundry services would be withdrawn. The reason given was that the money allocated to the Council by central Government had been reduced by £2.5 million and there was "no-where near enough to meet demand." It is only fair to add that the letter was sympathetic in tone.

5

Mr. Barry, and other residents, commenced proceedings for judicial review. His case is that his needs are the same as they always were. Parliament has imposed a duty on the Council to do what is necessary to meet those needs, and it is no answer that they are short of money, as no doubt they are. The Council's case is that in assessing Mr. Barry's needs they are entitled to have regard to their overall financial resources.

6

The case came before the Divisional Court on 6 June 1994. In the meantime the Council had, very properly, continued to provide Mr. Barry with the same services as before, pending the outcome of the proceedings. Mr. Gordon Q.C., who appeared for Mr. Barry, did not press his claim for an order of mandamus to compel the Council to perform their statutory duty. But he was granted a declaration in the following terms:

"That the respondent has acted unlawfully in that it has, on the sole basis of having exhausted available resources, withdrawn services previously provided or offered to the applicant pursuant to section 2 of the Chronically Sick and Disabled Persons Act 1970, without a lawful reassessment of the applicant."

7

On the broader question of whether the Council is entitled to take resources into account in assessing an individual's needs, McCowan L.J. said that a local authority would face an impossible task unless it could have regard to the size of the cake before deciding how to cut it.

"For these reasons I for my part have concluded that a local authority is right to take account of resources both when assessing needs and when deciding when it is necessary to make arrangements to meet those needs."

8

The test proposed by the Divisional Court was as follows:

"A balancing exercise must be carried out assessing the particular needs of that person in the context of the needs of others and the resources available, but if no reasonable authority could conclude other than that some practical help was necessary, that would have to be its decision."

9

This seems to reduce the minimum obligation under section 2 of the Act of 1970 to the level of Wednesbury unreasonableness.

10

Following the decision of the Divisional Court on the narrow question, the Council reassessed some 1,500 people in receipt of services under section 2 of the Act of 1970. As a result of the reassessment the number was reduced to 1,060. But meanwhile Mr. Barry had launched an appeal on the broader question. On 27 June 1996 the Court of Appeal [1996] 4 All E.R. 421 allowed his appeal by a majority, with Hirst L.J. dissenting. The Court of Appeal granted declarations as follows:

  • "1) By withdrawing the said services without the Council being satisfied that the applicant's previously assessed needs had diminished, the respondent is in breach of its continuing duty under section 2 of the Chronically Sick and Disabled Persons Act 1970;

  • 2) That in assessing or re-assessing whether it is necessary to make arrangements to meet them, a local authority is not entitled to take account of the resources available to such local authority."

11

The first of these declarations is no longer of practical effect, since the re-assessment has been carried out, and the services reduced as a consequence. But if the second of the declarations is correct, the Council would be obliged to revert to their former practice, and if necessary carry out a further re-assessment without taking their resources into account. The Council now appeals to the House. The Secretary of State for Health is joined in the appeal. It is as well that he should be for it is the failure of central Government to supply the funds necessary to enable the Council to carry out what I regard as their statutory duty which, departing from the fine words contained in the Government White Paper "Caring for People: Community Care in the Next Decade and Beyond" (1989) (Cm. 849), has put the Council into what the Divisional Court called an impossible position; truly impossible, because even if the Council wished to raise the money themselves to meet the need by increasing council tax, they would be unable to do so by reason of the government-imposed rate capping.

12

The construction of section 2 of the Act of 1970 does not seem to me to present any real problems. I set out the relevant part of the section verbatim:

" Provision of welfare services

(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) … (h) …

then, … subject … [… to the provisions of section 7(1) of the Local Authority Social Services Act 1970 (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State)] [and to the provisions of section 7A of that Act (which requires local authorities to exercise their social services functions in accordance with directions given by the Secretary of State)], it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29."

13

The section contemplates three separate stages. The Council must first assess the individual needs of each person to whom section 29 of the Act of 1948 applies. Having identified those needs, the Council must then decide whether it is necessary to make arrangements to meet those needs. There might be any number of reasons why, in the circumstances of a particular case, it might not be necessary for the local authority to make arrangements, for example, if the person's needs were being adequately met by a friend or relation. Or he might be wealthy enough to meet his needs out of his own pocket. But if there is no other way of meeting the individual's needs, as assessed, and the Council is therefore satisfied that it is necessary for them to make arrangements to meet those needs, then the Council is under a duty to make those arrangements. It is essential to a proper understanding of section 2 of the Act of 1970 to keep the three stages separate. Confusion arises if the stages are telescoped.

14

There is not much dispute about the second and third stages. Mr. Pleming on behalf of the Secretary of State conceded that at the third stage the duty is absolute. In other words, the Council cannot escape their duty to make arrangements to meet the need by saying that they do not have the money. Mr. Gordon, for his part, accepts that the Council must obviously be allowed a good deal of flexibility as to the arrangements which they...

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