Law Report: Resources might be relevant in assessing need for care

Regina v Gloucestershire County Council, ex parte Barry; House of Lords (Lord Lloyd of Berwick, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffman, Lord Clyde) 20 March 1997

A local authority was entitled to take resources into account in satisfying itself of the arrangements necessary to meet the needs of a person to whom section 2(1) of the Chronically Sick and Disabled Persons Act 1970 applied, although once it had so satisfied itself a shortage of resources would not excuse a failure to make the arrangements.

The House of Lords by a majority (Lord Lloyd of Berwick and Lord Steyn dissenting) allowed an appeal by the council and the Secretary of State against the decision of the Court of Appeal (Law Report 10 July 1996) allowing Michael Barry's appeal against the decison of the Queen's Bench Divisional Court.

The respondent, who was elderly and disabled, had been provided with services by the council pusuant to section 2(1) of the Chronically Sick and Disabled Persons Act 1970. In September 1994 he was informed by the council that resources allocated by the Government were inadequate to meet demand and that services must be reduced.

He sought judicial review of that decision, and was granted a declaration that the council had acted unlawfully in that it had, on the sole basis of having exhausted available resources, withdrawn services without having made a reassessment of his needs. The court also held, however, that the council was entitled to take account of its resources when assessing need and what services to provide. The respondent successfully appealed to the Court of Appeal on the latter point.

Patrick Eccles QC and Christopher Frazer (Council Solicitor) for Gloucester; Nigel Pleming QC and Steven Kovats (Treasury Solicitor) for the Secretary of State; Richard Gordon QC and Alan MacLean (Public Law Project) for Mr Barry.

Lord Clyde said that it was clear that the context in which section 2(1) of the 1970 Act had been placed was that of section 29 of the National Assistance Act 1948, under which it was proper for a local authority to take into account the extent of the resources which were available to it.

One would thus expect in approaching section 2(1) of the 1970 Act that, without clear words to the contrary, the extent of available resources would have remained a proper consideration, and the section was silent on the matter.

The right given to the person by section 2(1) of the 1970 Act was a right to have arrangements made which the local authority was satisfied were necessary to meet his needs. The duty to make the arrangements only arose if or when the local authority was so satisfied. When it did arise, however, it was clear that a shortage of resources would not excuse a failure in its performance.

That did not mean that a consideration of resources might not be relevant to the earlier stages of the implementation of the section, which should be distinguished from the emergence of the duty.

In deciding whether there was a necessity to meet the needs of the individual some criteria had to be provided. A mere list of disabling conditions graded in order of severity would still leave unanswered the question at what level of disability the stage of necessity was reached. In framing the criteria to be applied the severity of a condition might have to be matched against the availability of resources. Such an exercise accorded with everyday domestic experience in relation to things which we did not have.

It was not necessary to hold that cost and resources were always an element in determining the necessity. It was enough for the purposes of the present case to recognise that they might be a proper consideration.

On an exact analysis, measuring the necessity by the appropriate criteria, no unmet need would, strictly speaking, exist.

Section 2(1) of the 1970 Act had now to be implemented in the context of section 47 of the National Health Service and Community Care Act 1990. The distinct procedural situation relative to the disabled was sufficient reason for the making of a distinct provision for them in section 47(2), as opposed to that made for others in section 47(1), but it did not follow that any distinction existed in the considerations which might be taken into account in making an assessment.

Kate O'Hanlon, Barrister