R v Powys County Council and Another
| Jurisdiction | England & Wales |
| Judge | Schiemann L.J |
| Judgment Date | 02 July 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0702-12 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBCOF 97/1450/4 |
| Date | 02 July 1998 |
[1998] EWCA Civ J0702-12
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE POPPLEWELL)
Royal Courts of Justice
Strand
London W2A 21L
Lord Justice Peter Gibson
Lord Justice Schiemann
Lord Justice Mantell
QBCOF 97/1450/4
MR RICHARD GORDON QC and MR STEPHEN CRAGG (instructed by Messrs Thorpes, Hereford HR4 0BU) appeared on behalf of the Appellant.
MR CLIVE LEWIS (instructed by Legal Department, Powys County Council, Powys, Wales) appeared on behalf of the Respondent.
MR NIGEL PLEMING QC and MR STEVEN KOVATS (instructed by the Solicitor to the Departments of Health & Social Security for the Secretary of State) appeared on behalf of the Intervenor.
.:
Introduction
Mrs Hambidge is severely disabled. The 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 ("HASSASSA"). Before the court is an appeal with his leave against that decision.
Section 17 of HASSASSA 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 …….;
(b) …………………………
(c) Schedule 8 to the National Health Service Act 1977;
(d) …………………………
(e) …………………………
(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 section 2 of the Chronically Sick and Disabled Persons Act 1970 ("CSDPA") 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 Q.C., who appears for Mrs Hambidge, points out that the CSDPA is not listed in s.17(2) of HASSASSA and submits that the services in question were "provided under" CSDPA and were not provided under the enactments listed in s.17(2) of HASSASSA.
Popplewell J held that although s.2 of CSDPA imposed a duty to make arrangement 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. Words inserted after the original enactment appear stippled. Those which have been repealed are shown deleted.
The National Assistance Act 1948, section 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 substantially and permanently handicapped ……………….
(2) In relation to persons ordinarily resident in the area of a local authority the authority shall, to such extent as the Minister may direct, be under a duty to exercise their powers under this section.
(3) The arrangements made by a local authority under this section shall be carried into effect in accordance with a scheme made thereunder.
(5) A local authority may recover from persons availing themselves of any service provided under this Section such charges (if any) as, having regard to the cost of the service, the authority may determine, whether generally or in the circumstances of any particular case.
(6) Nothing in the foregoing provisions of this section shall authorise or require -
(a) ……………………………. ; or
(b) the provision of any accommodation or services required to be provided under the National Health Service Act 19461 1977 2………………….
It is common ground that s.29 as originally enacted did a number of things. It gave local authorities powers to make arrangements for the provision of services to a group whom I shall describe as the disabled. This is a power they previously lacked. It imposed a duty on authorities to make such arrangements for persons ordinarily resident in their area but only when so directed by the Minister. The Act gave no immediately enforceable rights to a disabled citizen. The section left untouched the provision of any accommodation or services required to be provided under the National Health Service Act. Both the 1946 and the 1977 National Health Service Acts expressly provided for the recovery of charges. Similarly, s.29(5) of the National Assistance Act 1948 gave authorities express powers to charge for the services provided under that section. Thus there was a power to charge whether the services were provided under one Act or the other.
In 1970 two relevant Acts were passed on the same day—the Local Authority Social Services Act ("LASSA") and the CSDPA.
Local Authority Social Services Act 1970, Section 2 :-
(1) Every local authority shall establish a social services committee and ……………. there shall stand referred to that committee all matters relating to the discharge by the authority of -
(a) their functions under the enactments specified in the first column of Schedule 1 to this Act ………….
Schedule 1 specified separately very many sections including section 29 of the National Health Service Act 194634, sections 29 and 30 of the National Assistance Act 1948 and Sections 1 and 2 of the CSDPA.
The Chronically Sick and Disabled Persons Act 1970, section 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 the 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) ……………………………
(c) ……………………………
(d) ……………………………
(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) …………………………….
(g) …………………………….
(h) …………………………….
Then, notwithstanding anything in any scheme made by the authority under the said section 29, ……… it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29.
(2) …., subsection (3) of the said section 29 ….shall not apply-
(a) to any arrangements made in pursuance of this section 5
Thus s.2 of CSDPA imposes a duty on authorities to exercise those powers if they are satisfied that it is necessary to do so. That left unspecified any mechanism through which the local authority could arrive at a state of such satisfaction.
The crux of Mr Gordon's submissions is that the enactment of this section had the effect of removing from authorities the power to make charges for the services mentioned in it.
The Local Government Act 1972 in effect did away with schemes such as those made under s.29 of the National Assistance Act 1948 and repealed subsections (2) and (3) of that section 6. The next statutory provision of significance in the present context was HASSASSA which was passed in 1983. This expressly repealed in Schedule 10 the charging provisions in s.29(5) of the National Assistance
Act 1948 and the charging provisions in the National Health Service Act 1977 Schedule 8 paragraph 3(2). This was no doubt because the provisions of s. 17 of HASSASSA which I have set out at the beginning of this judgment replaced them.Returning to the mechanism of how a local authority could achieve the state of being satisfied that it was necessary in order to meet the needs of the disabled to make arrangements for the provision of practical assistance etc. to that person, this problem was addressed first in the Disabled Persons (Services, Consultation and Representation) Act 1986, ("The 1986 Act") section 4 :-
When requested to do so by -
(a) a disabled person,
……………………………………
a local authority shall decide whether the needs of the disabled person call for the provision by the authority of any services in accordance with Section 2(1) of the CSDPA.
That however did not provide for the situation where a disabled person made no request. This was addressed in the National Health Service and...
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