Law Report: Higher income support payable: Chief Adjudication Officer and another v Harris and another; Same v Gibbon - Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice McCowan and Lord Justice Hirst), 15 April 1994

A person in need of care and attention who lived in accommodation managed by a voluntary organisation was entitled to the income support payable to a person in a residential care home and not the amount payable to a person in residential accommodation provided by a local authority if no arrangements had been made between the local authority and the voluntary organisation for the provision of the accommodation.

The Court of Appeal dismissed appeals by the chief adjudication officer and the Secretary of State for Social Security against decisions of the Social Security Commissioner in favour of the claimants, Jane E Harris and Freda Gibbon.

Each claimant was in need of care and attention and, until August 1991, lived in sheltered accommodation managed by their local authorities. In 1991 the sheltered accommodation was transferred to voluntary organisations. The claimants remained in the sheltered accommodation.

Each claimant was entitled to income support. The issue was whether, on the transfer of their residential accommodation to the voluntary organisations, the claimant was entitled to the weekly amount of pounds 52 for a person in residential accommodation provided under sections 21 and 26 of the National Assistance Act 1948, or to the weekly amount of up to a maximum of pounds 160 for a person in residential care or nursing home payable to the organisation.

A local authority may, under section 21, provide accommodation for persons in need of care and attention in premises managed by a local authority or under section 26, in premises maintained by a voluntary organisation by making arrangments with the voluntary organisation which under section 26(2) should include payments by the local authority for the accommodation.

The commissioner decided that, since the local authorities had not made arrangements with the voluntary organisations pursuant to section 26 for the claimants after the transfer the claimants were entitled to the larger amounts of income support for a residential care home.

The chief adjudication officer and the Secretary of State appealed on the ground that omission of the section 26(2) arrangements was an irregularity which did not prevent the arrangements qualifying as section 21 accommodation.

John Howell QC (Department of Social Security) for the chief adjudication officer and Secretary of State; Duncan Ouseley QC (Council Solicitor) for Dorset County Council; Genevra Caws (Cohen & Co, Cumbria); Richard McManus (Lawrence Graham) for the claimants.

LORD JUSTICE HIRST said that section 26(2) was mandatory, and on its plain construction required that provision for payment in respect of the accommodation provided 'at such rates as may be determined by or under the arrangements' must be part and parcel of the section 26 arrangement itself, and not merely consequential thereon.

It was difficult to see how a section 26 arrangement could work without a section 26(2) provision, seeing that otherwise there would be no machinery for fixing the rate of charges, which for elementary business reasons the voluntary organisation would need to establish in advance.

The absence of a section 26(2) provision was fatal to the existence of a section 26 arrangement. The commissioner's decisions were affirmed.

LORD JUSTICE MCCOWAN agreed.

SIR THOMAS BINGHAM MR, concurred.