Sowden v Lodge ; Crookdale v Drury
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Longmore,Lord Justice Scott Baker |
| Judgment Date | 21 October 2004 |
| Neutral Citation | [2004] EWCA Civ 1370 |
| Docket Number | Case No: B3/2003/2143 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 October 2004 |
[2004] EWCA Civ 1370
Lord Justice Pill
Lord Justice Longmore and
Lord Justice Scott Baker
Case No: B3/2003/2143
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE ANDREW SMITH)
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss E A Gumbel QC, & Mr H Witcomb (instructed by Irwin Mitchell) for the Claimants
Mr W Hunter QC & Mr M Rawlinson (instructed by Silverbeck Rymer) for the Defendants
These are appeals from the High Court, in one case by a claimant ( Louise Sowden (a patient) v Joanne Lodge: judgment of Andrew Smith J dated 25 March 2003) and in the other by a defendant ( David Drury v Philip Crookdake (a patient) : judgment of Owen J dated 31 July 2003), against the amount of damages awarded in personal injury cases. The appeals have been heard together because they are thought to give rise to similar issues of general importance.
I have to say, however, that as the cases have developed and concessions have been made, the resolution of the appeals does not involve consideration of some of the points of law of general importance which may have been contemplated. Both cases turn primarily on the application of the law to the facts of the case though an issue as to the test to be applied by the judge when considering the adequacy of the proposed provision for the claimant does arise in the case of Sowden.
The general area of the law under consideration is the effect upon the liability of tortfeasors in personal injury cases of the duty upon local authorities under Section 21 of the National Assistance Act 1948 ("the 1948 Act") (as now enacted and as interpreted by the Courts), directions given under it and regulations limiting the right of the local authority to recover the cost of the provision from the injured person. It is not disputed that:
a) a judge is entitled to hold on appropriate evidence that the statutory provision for care and accommodation meets the claimant's reasonable requirements. In such circumstances the tortfeasor may not be required to pay for care and accommodation.
b) statutory provision for care and accommodation, augmented by payments on behalf of the tortfeasor for further care, may, on appropriate evidence, meet the reasonable requirements of a claimant.
c) if, in the present cases, the local authority provide under Section 21 of the 1948 Act care and accommodation they cannot recover its cost from the claimants' damages. The extension of that principle has had the effect of increasing the potential burden on local authorities under Section 21.
(I add that it is strongly argued in McGregor on Damages (17th Edition (2003), paragraphs 35–205 to 209) that the law should be amended to ensure that the tortfeasor pays.)
I set out the statutory scheme at this stage. That appears to be more convenient because of the two cases involved.
Statutory Scheme
Section 21(1) of the 1948 Act, as amended, provides, insofar as is material:
"(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent he may direct shall, make arrangements for providing –
(a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them."
The words illness and disability were substituted by the National Health Service and Community Care Act 1990 ("the 1990 Act"), Section 42(1) .
Section 47(1) of the 1990 Act provides:
"… Where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services [which includes services to be provided under Section 21 of the 1948 Act] may be in need of any 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 of them by any such services".
Injured persons with a claim against tortfeasors are not excluded from the operation of this duty.
Section 22 of the 1948 Act provides, insofar as it is material:
"(1) Subject to section 26 of this Act, where a person is provided with accommodation under this Part of this Act the local authority providing the accommodation shall recover from him the amount of the payment which he is liable to make in accordance with the following provisions of this section.
…
(5) in assessing as aforesaid a person's ability to pay, a local authority shall give effect to regulations made by the Secretary of State for the purposes of this sub-section."
Section 26 provides that, in specified circumstances, arrangements under Section 21 may include arrangements made with a voluntary organisation or with any other person who is not a local authority.
It is agreed that the effect of the National Assistance (Assessment of Resources) Regulations 1992, National Assistance (Assessment of Resources) (Amendment) Regulations 1998 and the Income Support (General) Regulations 1987 is that personal injury trusts and compensation for personal injuries which is administered by the court is to be disregarded for the purposes of Section 22 of the 1948 Act. Income from capital administered by the court is to be treated as capital and also to be disregarded ( Bell v Todd & Anr [2002] LR Med 12) . It is not disputed that the payment of damages in the present cases will bring the sums awarded within those provisions so that the cost of accommodation and care provided by a local authority under Section 21 would not be recoverable, under Section 22, out of damages awarded. The Court has been told, that even when a claimant is not under a disability, only if the claimant chooses to take damages as a lump sum and not to place it in a personal injury trust, is the sum not to be disregarded. The choice is that of the claimant.
The relevant directions issued by the Secretary of State under Section 21(1) of the 1948 Act are contained in the National Assistance Act 1948 (Choice of Accommodation) Directions 1992, as amended ("the 1992 Directions") . They were cited by Owen J in Crookdake but did not feature prominently in Sowden. Owen J cited paragraphs 2,3 and 4 of the directions, though paragraph 4 was revoked by the National Assistance Act 1948 (Choice of Accommodation) (Amendment) (England) Directions 2001. The case did not turn on that paragraph. The 1992 directions provided, insofar as it is material:
2. Local authorities to provide preferred accommodation.
Where a local authority have assessed a person under section 47 of the National Health Service and Community Care Act 1990 (Assessment) and have decided that accommodation should be provided pursuant to section 21 of the National Assistance Act 1948 (Provision of Residential Accommodation) the local authority shall, subject to paragraph 3 of these directions, make arrangements for accommodation pursuant to section 21 for that person at the place of his choice within England and Wales (in these directions called "Preferred Accommodation") if he has indicated that he wishes to be accommodated in preferred accommodation.
3. Conditions for provision of preferred accommodation
Subject to paragraph 4 of these directions the local authority shall only be required to make or continue to make arrangements for a person to be accommodated in his preferred accommodation if;
5. the preferred accommodation appears to the authority to be suitable in relation to his needs as assessed by them;
(b) the cost of making arrangements for him at his preferred accommodation would not require the authority to pay more than they would usually expect to pay having regard to his assessed needs;
5. the preferred accommodation is available;
(d) the persons in charge of the preferred accommodation provided it subject to the authority's usual terms and conditions, having regard to the nature of the accommodation, for providing the accommodation for such a person under Part III of the National Assistance Act 1948.
The directions included a section headed "GUIDANCE". I cite the paragraphs cited by Owen J:
5. If the individual concerned expresses a preference for particular accommodation ("Preferred Accommodation") within the UK, the authority must arrange for care in that accommodation, provided
• accommodation is suitable in relation to the individual's assessed needs
•?To do so would not cost the authority more than it would usually expect to pay for accommodation for someone with the individual's assessed needs
• The accommodation is available
• The person in charge of the accommodation is willing to provide accommodation subject to the authority's usual terms and conditions for such accommodation.
6. If a resident requests it, the authority must also arrange for care in accommodation more expensive than it would normally fund, provided there is a third party willing and able to pay the difference between the cost the authority would usually expect to pay and the actual cost of the accommodation.
7. Preferred accommodation
As with all aspects of service provision, there should be a general presumption in favour of people being able to exercise choice of the service they receive. The limitations on authorities' legal obligation to...
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