Cost of accommodating elderly is relevant

A council was entitled to take account of its own resources when considering the need of an applicant for accommodation under section 21 of the National Assistance Act 1948, and deciding whether it was under a duty to provide such accommodation.

The Queen's Bench Division dismissed applications by the first and third applicants, but granted that of the second applicant, for judicial review of the respondent council's policy by which it decided applications for accommodation under section 21(1) of the National Assistance Act 1948 ("part III accommodation").

The council had adopted the policy because the cost of the demands made on it for part III accommodation had exceeded the resources available.

By the first limb of the policy a capital threshold, substantially lower than the lower of the two thresholds provided by the relevant regulations, namely the National Assistance (Assessment of Resources) Regulations 1992 as amended by the National Assistance (Assessment of Resources) (Amendment) Regulations 1996, was fixed for determining whether a reduction should be made in the amount payable for the accommodation by the resident. It was unlikely, because of the council's lack of resources, that applicants with capital in excess of the council's threshold would receive any provision.

The second limb of the policy applied the first to a resident who had been admitted to part III accommodation provided by a third party, and who had subsequently received an addition to his capital which took him above the upper capital threshold of pounds 16,000 provided by the regulations, making him liable to pay the full cost of the accommodation.

The council treated such a person as ceasing to occupy accommodation provided under section 21. Accordingly, if his capital subsequently fell to pounds 16,000, his case was considered afresh in accordance with the first limb of the policy.

Genevra Caws QC and Helen Mountfield (Public Law Project) for the applicants; Andrew Gilbart QC and John Barrett (Council Solicitor) for the council.

Mr Justice Jowitt said that the question whether the council was entitled to take account of its own resources in deciding whether it had a duty or was required to discharge its duty to an applicant for part III accommodation had to be considered in the light of the decision of the House of Lords in R v Gloucestershire County Council, ex p Barry (Law Report 9 April 1997).

That case had concerned section 2(1) of the Chronically Sick and Disabled Persons Act 1970. Although the wording of that section and that of section 21(1)(a) of the National Assistance Act 1948 were not identical, they spoke with the same peremptory voice.

The majority of the House of Lords had held that a local authority was entitled in assessing the needs of a disabled person under section 2(1) of the 1970 Act to take into account its own resources, on the ground that need was not an absolute concept and had to be considered in the context of all relevant factors, of which the local authority's resources was one.

Lord Clyde had dealt with the attempt which had been made to distinguish the cases of the disabled from those of others seeking services under section 47 of the National Health Service and Community Care Act 1990, saying that no distinction existed in the considerations which might be taken into account in making an assessment in the case of the disabled as compared with any other case.

That provided a clear, decisive and affirmative answer to the question whether a local authority was entitled to take account of its own resources in considering the need of an applicant seeking part III accommodation, and deciding whether the need which triggered the duty to provide such accommodation had been established. Having, however, decided that the duty existed, the authority could not at that stage pray in aid its own lack of resources for failing to make provision.

The second limb of the council's policy had affected the second applicant, who had been told by the council that when his capital had risen above pounds 16,000 he had ceased to be a resident provided with part III accommodation. There was no evidence on which the council could have reached that conclusion, and his application must succeed.

Kate O'Hanlon, Barrister