R v Powys CC ex parte Hambidge
| Jurisdiction | England & Wales |
| Judgment Date | 1998 |
| Date | 1998 |
| Court | Court of Appeal (Civil Division) |
Local authority – Provision of community care services for disabled person – Whether local authority entitled to charge for provision of such services – Health and Social Services Security Adjudications Act 1983, s 17.
The applicant was disabled. The local authority provided community care services for her and sought to charge her for those services. She applied for judicial review contending that the local authority were not entitled to charge for the provision of those services as she was provided with them under s 2 of the Chronically Sick and Disabled Act 1970. Her application was dismissed, the judge holding that the charge was lawful. The applicant appealed. The Secretary of State for Health was joined as intervenor to the proceedings.
Held – When considering whether a local authority were entitled to charge for the provision of community care services, the crucial question was whether those services were ‘provided under’ any of the enactments listed in s 17(2) of the Health and Social Services Security Adjudications Act 1983. The provision of community care services by a local authority under s 2 of the 1970 Act were services ‘provided for’ under s 29 of the National Assistance Act 1948. As such they fell within the provisions of s 17 of the 1983 Act and accordingly were chargeable. It followed that the appeal would be dismissed.
Cases referred to in judgmentsR v Gloucestershire CC, ex p Barry, R v Gloucestershire CC, ex p Barry [1997] AC 584, [1997] 2 All ER 1, [1997] 2 WLR 459, HL.
R v Gloucestershire CC, ex p Mahfood, R v Islington London BC, ex p McMillan (1996) 8 Admin LR 180, DC.
Wyatt v Hillingdon LBC (1978) 76 LGR 727, CA.
AppealThe applicant, Mrs Jenny Hambidge, appealed with leave from the decision of Popplewell J dismissing her application for judicial review of the decision of the respondent, Powys County Council (the local authority), to charge her for community care services. The Secretary of State for Health was joined as intervenor to the proceedings. The facts are set out in the judgment of Schiemann LJ.
Richard Gordon QC and Stephen Cragg (instructed by Thorpes, Hereford) for the appellant.
Clive Lewis (instructed by JR Patterson, Powys County Council) for the respondent.
Nigel Pleming QC and Steven Kovats (instructed by the Solicitor to the Department of Health) for the intervenor.
Cur adv vult
2 July 1998. The following judgments were delivered.
SCHIEMANN LJ(giving the first judgment at the invitation of Peter Gibson LJ).
IntroductionMrs Hambidge is severely disabled. The county council, Powys County Council, provides community care services for her consisting largely of practical assistance in the home and help with adaptations. The question at issue in this appeal is one of general importance to local authorities subject to duties to make arrangements for the provision of services to the disabled: are they entitled to charge for the provision of those services? Popplewell J held that they are so entitled because of the provisions of s 17 of the Health and Social Services and Social Security Adjudications Act 1983. Before the court is an appeal with his leave from that decision.
Section 17 of the 1983 Act states:
‘(1) Subject to subsection (3) below, an authority providing a service to which this section applies may recover such charge (if any) for it as they consider reasonable.
(2) This section applies to services provided under the following enactments—(a) section 29 of the National Assistance Act 1948 . . . (c) Schedule 8 to the National Health Service Act 1977 . . .
(3) If a person—(a) avails himself of a service to which this section applies, and (b) satisfies the authority providing the service that his means are insufficient for it to be reasonably practicable for him to pay for the service the amount which he would otherwise be obliged to pay for it, the authority shall not require him to pay more for it than it appears to them that it is reasonably practicable for him to pay.’
The crucial question in this case is whether the community care services which the disabled receive are ‘provided under’ any of the enactments listed in s 17(2). It is common ground that if they are not then the council is not entitled to charge. It is common ground that s 2 of the Chronically Sick and Disabled Persons Act 1970 imposed a duty on some local authorities to make arrangements for the provision of some services (including the ones with which we are concerned). Mr Richard Gordon QC, who appears for Mrs Hambidge, points out that the Chronically Sick and Disabled Persons Act 1970 is not listed in s 17(2) of the 1983 Act and submits
that the services in question were ‘provided under’ the 1970 Act and were not provided under the enactments listed in s 17(2) of the 1983 Act.
Popplewell J held that although s 2 of the 1970 Act imposed a duty to make arrangements for the provision of the services they were nevertheless ‘provided under’ s 29 of the National Assistance Act 1948.
In order to understand the submissions on each side it is necessary to consider not merely a number of Acts but also their legislative history. It is convenient to show the relevant sections as originally enacted and as they now appear.
The National Assistance Act 1948, s 29:
‘(1) 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 have power to 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...
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