England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE LAWS: In this motion for judicial review, the applicant asserts that the respondent local authority is in the events which have happened under a present obligation to carry out an assessment of his needs pursuant to s.47(1) of the National Health Services

2. The primary facts are not in dispute. The applicant, who was born on 23rd February 1968, is seriously disabled. He suffers from viral brain damage and epilepsy. Until he was 20 he lived at home with his mother in Berkshire. Between December 1988 and February 1991 he lived in the Holy Cross Hospital in Haslemere. Since December 1991 he has been at a private home, the British Home and Hospital for Incurables ("BHHI") in Streatham. His placement there is funded partly by Berkshire Health Authority and partly by the Department of Social Security. Most of the day he sits in his wheelchair in the dining room at the Home. He shares a bedroom with 3 others. He has some awareness of his environment but only a limited ability to communicate. He receives no physiotherapy, occupational therapy, or assistance in communication. No recreational or social facilities, such as art or outings, are available to him. He has in effect nothing to do except listen to music, the radio, or television. In fairness I should indicate that there is no complaint as to the medical attention received by the applicant, and this application involves no criticism of BHHI; it is said rather that he needs a different level and type of care than is available there, though as will appear it is no part of my function to decide as a matter of fact what services should be provided for him.

3. The applicant's mother, who lives in Hammersmith and Fulham and acts as his next friend in this litigation, is very worried about him. By October 1995 she had become so concerned about the level of care and services which he was receiving at BHHI that she instructed solicitors who wrote to the respondent's Social Services Department on 12th October to request an assessment of his needs under s.47(1) of NHSCCA. In consequence the respondent produced a document dated 30th November 1995 which was said to be an assessment under s.47(1). Mrs Parker says that this was not a lawful assessment under the subsection because, as it is put in Miss Richards' skeleton argument, it does not identify his needs but merely describes the services which the applicant currently receives. The applicant's Grounds focus on the alleged inadequacies of the November document, but in the event it is unnecessary for me to canvass them because the respondent accepts that it was not drawn up in accordance with "good practice" (though would no doubt assert on the particular facts that this is not a ground for criticism); more important, the respondent also accepts that if I hold that it presently owes a duty to the applicant to assess his needs under s.47(1) a further assessment will be carried out, and there is no reason to suppose that that would be anything other than a proper assessment under the subsection, whatever the rights and wrongs of the old one. The question I must decide is whether, leaving aside the November document, there is a present duty upon the respondent to assess the applicant under s.47(1).

4. In order to understand the nature of the parties' arguments on this issue, it is convenient to set out the relevant legislation and in part the contents of certain Ministerial circulars.

5. S.46(3) defines "community care services" in part as follows:

6. Part III of the Act of 1948 ("NAA") includes s.21(1):

7. S.2(1) of the Chronically Sick and Disabled Persons Act 1970 provides:

8. The Secretary of State gave approvals and directions under s.29(1) of NAA in Appendix 2 of Circular LAC(93)10. Paragraph 2(1) reads in part:

9. Paragraph 2(3) states:

10. Then by paragraph 2(3) various other forms of provision are approved, such as holiday homes, free or subsidized travel, and assistance in finding accommodation.

11. By paragraph 2(4) the Secretary of State approves the making by local authorities of arrangements referred to in s.29(4), which I have not set out but which deals with such matters as the provision of suitable work, instruction, and recreational facilities for disabled people in their own homes.

12. Circular 93(10) paragraph 5 reads in part as follows:

13. Circular LAC(93)7, issued by the Secretary of State, is headed "Ordinary Residence". Paragraph 1 states:

14. There is a substantial dispute between the parties as to where is the applicant's 'ordinary residence', a term which, as appears from the citations I have given, figures in the relevant legal materials and in particular in NAA s.29(1). Much of the respective skeleton arguments, and a certain amount of the affidavit evidence, concern that question. However when the case was opened I was told that the parties are agreed that it is not a question for me to determine; application will be made to the Secretary of State to decide it, as is required by NAA s.32(3). I have no doubt that the parties were right so to agree. But Miss Richards submits that on the true construction of the relevant legislation the respondent is obliged to assess the applicant's needs under NHSCCA s.47(1)(a) now, before any determination by the Secretary of State is made. Mr McCarthy QC for the respondent submits that the duty to assess only arises once it is established that the applicant is ordinarily resident in the respondent's area.

15. This issue falls to be determined according to the correct construction of NHSCCA s.47(1) and NAA s.29(1). No authority has been cited to me as to the interpretation of either subsection, and I assume none exists. The issue is of some general significance. Miss Richards submits that on the facts here no local authority has assumed responsibility for the applicant as being ordinarily resident within its area (I do not travel into the evidence about it, because as I have said the Secretary of State will decide where in truth he is ordinarily resident). In such circumstances, she says, any severely disabled person in the applicant's position is left in limbo if the respondent's approach is right: If there is an open question where he is ordinarily resident, he will have no rights under s.47(1) until that question is decided by the Secretary of State. Depending no doubt upon the particular conditions in which he is presently living, that may have very deleterious consequences.

16. I turn to the competing arguments as to the correct construction of the relevant statutory provisions. As regards s.47(1), Miss Richards for the applicant submits that the duty to assess is triggered by the existence of a legal power in the local authority to provide or arrange for the provision of community care services for any person appearing to be in need of such services; this is no more nor less than what the statutory words in the subsection say. If that is right, the duty to assess exists if (on the facts of this case) the respondent is empowered under NAA s.29(1) to provide services to the applicant. That being her approach Miss Richards concentrated her argument upon the interpretation of s.29(1), and I will come to that.

17. Mr McCarthy for his part submits that the phrase in s.47(1) "... any person for whom they may provide or arrange for the provision of community care services..." imports two conditions which must be fulfilled before the s.47(1) duty arises: First, the existence of what he called a 'basic vires' to make such provision, and secondly the existence as regards the particular local authority of an actual, practical, ability to provide specific services (of a kind, I assume, which the person under consideration might need).

18. It seems to me that looked at purely as a matter of strict construction. Mr McCarthy's position on s.47(1) is distinctly unpromising. It would require me to hold that the word "may" in the phrase I have just set out carries out two quite different meanings at the same time: first, a requirement of "basic vires" - the authority legally "may" make the relevant provision, and secondly a requirement of factual capacity - the authority "can" make the provision. I do not think this can be right. If Parliament had intended the s.47(1) duty to be subject to a factual capacity in the authority itself to make provision within its existing arrangements, it could readily have so provided. Miss Richards in my judgment correctly relied on the fact that s.47(1) contemplates not only provision of community care services, but also arrangement by the authority for such provision; and in addition the terms of s.47(1)(b) show that once an assessment is made by the authority is to decide whether the person's

19. However Mr McCarthy supported his position on s.47(1) by means of a specific argument directed to the correct sense to be attributed to paragraph 2(1) of Appendix 2 of Circular 93(10). The primary relevance of this measure is to the correct construction of NAA s.29(1) to which I will come; but I deal now with Mr McCarthy's submission about it so far as it relates to s.47(1). He says that the words "in relation to persons who are ordinarily resident in their area" apply only to the Secretary of State's direction, not his approval. He asserts therefore that in paragraph 2(1) of the Circular the Secretary of State has given no more than a general "approval" to the making of arrangements under s.29(1) so far as they might relate to persons not ordinarily resident in an authority's area, but has by contrast made specific directions for named purposes in relation to persons who are ordinarily resident in the local authority's area. His purpose in so submitting was, as I understood it, to support the proposition that no specific forms of provision under s.29(1) are in place pursuant to an approval by the Secretary of State of which persons not ordinarily resident in an authority's area might take advantage; and so, I think he would say, there is nothing on which the power referred to in s.47(1) can bite as regards any person not so ordinarily resident, with the consequences that the s.47(1) duty cannot arise in relation to any such person.

20. With respect to Mr McCarthy, I see no force in this argument. First, it rests on what seems to me plainly an incorrect interpretation of paragraph 2(1). As a matter of language the paragraph both approves (as regards all persons to whom s.29(1) applies) and directs (as regards persons ordinarily resident in the authority's area) the specific provision identified at (a) - (c). Secondly, as Miss Richards submits, paragraphs 2(3) and (4) would be otiose if Mr McCarthy is right. Thirdly, Mr McCarthy's reliance on paragraph 2(1) reveals something of a slippage in his argument: If the proposition is that the s.47(1) duty only arises where the authority already has in place existing arrangements of which non-ordinarily resident persons may take advantage, that is one thing; but if the argument is that the duty to assess only arises where the Secretary of State has authorised arrangements to be made (which, so far as it goes, is clearly right) then on his own argument the Secretary of State has authorised any and all arrangements; and Mr McCarthy, to use the tired phrase, is hoist on his own petard. Paragraph 2(1) cannot assist him.

21. For all these reasons I reject the respondent's submission that s.47(1) imports a condition requiring the physical availability of services to a person before the duty of assessment arises in relation to that person. The word "may" in the subordinate clause in question means, in the context of the subsection as a whole, that the duty to assess arises where the local authority possesses the legal power to provide or arrange for the provision of community care services to the individual in question.

22. This brings me to NAA s.29(1), since that is the provision in which Miss Richards says the relevant power is to be found. The principal issue here is whether the words "in relation to persons ordinarily resident in the area of the local authority" qualify both the discretion ["may... make arrangements for promoting the welfare of persons..."] and the duty to do so ["shall"], or only the latter. Miss Richards contends for the second construction; Mr McCarthy for the first. Miss Richards prays in aid the terms of paragraph 2(1) of Appendix 2 to Circular LAC(93)10, which I have already discussed in the context of Mr McCarthy's argument on s.47(1) but repeat in part for convenience:

23. Miss Richards submits that this paragraph plainly reflects the construction of s.29(1) for which she contends. The Secretary of State makes a clear distinction between approval and direction: Only the latter is limited so as to refer to persons ordinarily resident in the local authority area. I have already indicated that in my view this is a correct approach to the Circular, and to that extent it assists Miss Richards. For his part Mr McCarthy relies on paragraph 1 of Circular LAC(93)7:

24. He submits that this paragraph plainly reflects the construction for which he contends. So far as it goes, so it does. Miss Richards says that this Circular (as its title indicates) is dealing specifically with questions of ordinary residence as they arise under the legislation, and there is no focus on the distinction between approval and direction in NAA s.29(1).

25. While I have discussed paragraph 2(1) of Appendix 2 to Circular (93)10 at some length out of respect for Mr McCarthy's argument on s.47(1), I should indicate at this stage a degree of judicial unease that two ministerial circulars should be advanced before me as competing interpretations of an Act of Parliament, to which I should pay attention to deciding the Act's true meaning. In the course of argument I raised the question how far such materials are by law a legitimate aid to construction; neither counsel was armed with any authority to deal with such a question, and both seemed to accept that I could take the Circulars into account so far as I thought is helpful. I have some doubt whether that is right. I may, as I understand it, look at subordinate legislation to assist in the construction of main legislation where the subordinate measure forms part of a code with the statute; and Miss Richards would no doubt say that paragraph 2(1) of (93)10, though not a statutory instrument as such, falls into that category since it constitutes the Secretary of State's decision expressly contemplated by s.29(1) without which the subsection would lack all application. I think there is some force in that, and I should pay more attention to paragraph 2(1) than to paragraph 1 of (93)7; but it would be wrong to treat either as a driving force in my determination of the true construction of s.29(1).

26. In my judgment s.29(1) confers two distinct functions on local authorities; one permissive, the other mandatory. Within it the duty to make arrangements is confined to cases where the Secretary of State has given a direction relating to persons ordinarily resident in the authority's area. The power to make arrangements is not so confined; it arises where the Secretary of State has given his approval to arrangements being made, and his approval may be given without regard to the place of residence of any potential beneficiary. This is the natural meaning of the subsection. Mr McCarthy advanced a submission to the effect that if that construction were right, the draftsman would have placed a comma after the word "shall". In these days when too many people believe that language means only what its user wants it to mean it is refreshing to entertain so refined an argument; but I think the point is badly taken. It would mean that there is no distinction in the provision between the scope of the Secretary of State's power of approval and his power of direction. I consider that the statute plainly differentiates between the two, confining the latter to arrangements for the benefit of persons ordinarily resident in the authority's area. It is perhaps worth noting that the words which provide for the antithesis between approval and direction were added by the Local Government Act 1972 in which the significance of Mr McCarthy's putative comma may have been lost.

27. Mr McCarthy had a further argument, based on an alleged absurdity. He said that if Miss Richards were right, persons up and down the land may seek assessments under s.47(1) from authorities with which they had no practical connection. Theoretically, this is right; but

28. In the result, the construction of s.29(1) which I prefer cannot in my judgment be refuted on absurdity grounds or any other. It follows that the respondent is obliged to conduct a proper assessment of the applicant's needs, and I will so declare.

29. MR JUSTICE LAWS: As you will have seen I have been reading from a text. I do not know whether copies have been provided? They have. I have departed from it here and there. The reference towards the very end to the Chronically Sick and Disabled Act is not in the text but will appear in the corrected transcript.

30. MISS RICHARDS: We are most grateful for your Lordship for having handing down a judgment to us in written form.

31. My Lord, could I express a couple of concerns

32. MR JUSTICE LAWS: Yes, certainly.

33. MISS RICHARDS: Your Lordship has indicated the declaration your Lordship is minded to make and I have nothing to say on the wording of that. I am slightly concerned in relation to the question of reassessment that will now take place.

34. MR JUSTICE LAWS: You raised this yesterday.

35. MISS RICHARDS: My Lord, the local authority has not accepted that the criticisms which we aimed at the assessment, which you have set out on page 2 of your judgment in summary, that it does not identify his needs but merely describes the services which the applicant currently receives. We are concerned they have not accepted that is a correct criticism. My Lord, I know you have not heard full argument on it. It is right that I should voice my concern certainly for the record. All the respondent has indicated is that they would like a chance to do better. They have not accepted that it was unlawful.

36. MR JUSTICE LAWS: The difficulty about getting any help from me about that is that there is a clear undertaking to make a new assessment, whether a good one or a bad one, if I arrive at the conclusion I have arrived at, it would be hypothetical or academic for me to enter into judgment as to the merits of the old one. I have said and I would have thought that it merely reflects what was expressed as common ground yesterday on page 2:

37. I have said there is no reason to suppose that would be anything other than a proper assessment under the subsection. I hope that is not too optimistic.

38. You have expressed your concerns. If another assessment is made and, regrettably, there is something to complain about, then I suppose you would be back again with another judicial review.

39. MISS RICHARDS: My Lord, you have not heard full argument on it and indeed one of the points I know my learned friend would have raised in relation to any relief would be the question of the complaints procedure. It is not appropriate to canvass it before you now but I just wish to lay down a marker as to our concerns.

40. My Lord, the second point, I would raise again,

41. MR JUSTICE LAWS: Time has passed.

42. MISS RICHARDS: We would invite the respondent, if not to give an undertaking, to deal with the other authorities and try and resolve the dispute and or go to the Secretary of State as soon as possible then at least express their willingness and intention so to do. It is a matter of concern. Although now there will be an assessment of his needs, obviously the power to provide services is far more limited until the question of ordinary residence is resolved.

43. MR JUSTICE LAWS: I doubt whether there is much I can do about it although I understand your client is worried. Mr McCarthy, I do not think it is a matter for any judicial intervention by me but anything you can say about either of these two points which will assuage the applicant's fears I suppose would be welcome.

44. MR McCARTHY: My Lord, on the first point, I am sorry to say, it is anticipating that the next assessment is in some way going to be defective. You will have seen that Berkshire have exempted to Mr Chalmers' affidavit their assessment procedures which speak for themselves.

45. That is what they are proposing to follow. I have not heard any criticism made of their assessment procedures. Indeed, one of the grounds for complaint in this application is that they have not followed their own procedures.

46. MR JUSTICE LAWS: Which was a fact. They had not.

47. MR McCARTHY: Which would seem to be, if I understand the matter correctly, a concession that the assessment procedures are correct. My Lord, I do not have anyone with me from the Social Services Department. I have an instructing solicitor's secretary with me. I would like to say whatever I can to sway Mrs Parker's concern but

48. I have no control over exactly what is done. I will ensure that what is said is passed back to those who are responsible.

49. On the second point, I am in the same position. Obviously, I would wish to make some sort of declaration on behalf of the Council as to exactly who they are going to contact and when. I am in no position to do that. I will again pass on the concern. With the matter of the other authorities your Lordship may have deduced this from the correspondence which has been exhibited to to Mr Stymes' (as translated) recent affidavit. It may seen as if there has been cross purposes between the parties there. The local authority pointed out the difficulty about potential liability of other authorities quite some time ago. That prompted the not unsurprising response that you are wrong and Mr Parker is ordinarily resident in Berkshire and there the matter remained. The invitation, in the course of the respondent's solicitors letter, was to the applicants' solicitor to take a view about what should be done and consider whether or not one of the other authorities had not been contacted. If there had been more detailed discussion at that stage, maybe two-and-a-half or three months ago we would that much further down the road.

50. The significance of the involvment of the other authorities is very much in Berkshire's mind, if only because as a matter of sheer physical practicality, even if it has to be done by means of an agency arrangement between two local authorities and locally based facilities are of more use to Mr Parker than ones which are located in Berkshire. Again, I will have that passed on.

51. MR JUSTICE LAWS: I think the nettle needs to be grasped in relation to ordinary residence. It may be that not much more can be achieved now short of going off to the Secretary of State.

52. MR McCARTHY: My Lord, I have to say that experience tends to suggest that local authorities do not easily pick up the responsibility in relation to someone who they believed may be someone else's responsibility. You will see one of the local authorities is Lambeth which your Lordship may appreciate is not necessarily prone to offer money to those who request it. My Lord, all I can say is that Berkshire has to be seen as the lead authority for present purposes because they are in the frame for carrying out assessments and they have to get the ball rolling.

53. MR JUSTICE LAWS: My Lord, I do not think there is nothing more that could usefully be said.

54. MISS RICHARDS: My Lord, no. I merely wanted the point passed back to the local authority. My Lord, the only remaining matter is the question of costs. I would ask for my costs.

55. MR McCARTHY: My Lord, there is no challenge on the declaration or costs. I do have a further application.

56. MISS RICHARDS: My Lord, legal aid taxation.

57. MR JUSTICE LAWS: Yes. As regards the declaration, you need to put in an agreed draft I imagine it need say no more than it is hereby declared that the respondent owes a duty to assess the applicant under section 47(1). You can have your costs and a legal aid taxation. Do you want to appeal, Mr McCarthy?

58. MR McCARTHY: Dangling as I am from my own petard, my Lord,

59. I am not so incautious as to ably suggest there is anything distinctly wrong with your Lordship's judgment. There are clearly very substantial reasons which I readily recognise as why your Lordship's judgment is correct. However, my Lord, I advance what I hope I can call the usual authorities as to the circumstances in which leave to appeal might properly be granted, even if the judge at first instance considers, having grapsed what it said in opposition, that his judgment is correct.

60. MR JUSTICE LAWS: He would not have made if he did not think it was correct.

61. MR McCARTHY: Absolutely not. My Lord, they are conveniently set out in the White Book. If your Lordship has

62. MR JUSTICE LAWS: I have read that.

63. MR McCARTHY: My Lord, that is based on the Buckle and Homes and the ex parte Gilcrist case. My Lord, they are just dicta in individual cases. The footnote does accurately set them out.

64. MR JUSTICE LAWS: There is a general discretion to give leave. All sorts of things may come into play, the difficulty of the case, the importance of the case, the the lack of previous authority on the point and so on.

65. MR McCARTHY: My Lord, may I say the real point in a sense, and I am not questioning your Lordship's judgment, having regard to those authorities as to why leave is properly to be considered, are because of the consequences of a declaration in this area. I recognise that there is something to be said for the argument at least some of the 47(1)(a) problems can be as it were transferred to the 46(1)(b) decision as to the service provision itself. I am sure your Lordship will appreciate, at a very quick glance, how much is involved in the assessment of procedure in relation to someone whose needs are as complex as Mr Parker.

66. MR McCARTHY: That involves a considerable amount of manpower and expenditure of time. My Lord, that does involve a very considerable knock-on effect.

67. MR JUSTICE LAWS: You say, in a sentence, that this is a matter of general importance for which there is no previous authority about and is fit to be tested in the Court of Appeal.

68. MR JUSTICE LAWS: I understand that. I will hear

69. Miss Richards of course, but my concern is to the implications for the timetable. You probably would need instructions.

70. MR McCARTHY: My Lord, my clients are not going to hold back on the implementation of a declaration. I have no instructions that they would wish to do. Clearly, my Lord, a very large amount of time has gone by. If one puts the November assessment to one side, this particular ball has been rolling since October 1995. It is not the intention of using the passage of a pending appeal to do nothing about it.

71. MR JUSTICE LAWS: I do not suppose you are in any position to give an undertaking to proceed with the assessment irrespective of the progress of the appeal.

72. MR McCARTHY: I am not my Lord. I have no instructions which require me to seek anything which would be in the nature of the stay of execution. This was a directive order as opposed to a declaration. Therefore, the effect of an appeal would not be to suspend the operative effect of the declaration. That is not what is proposed by Berkshire.

73. MR JUSTICE LAWS: No. You just want it tested because of its general importance?

74. MISS RICHARDS: My Lord, I cannot deny that it is a point of some importance but your Lordship has held that the meaning is clear. In those circumstances, in my submission, it would be appropriate for the Court of Appeal to decide whether the issue was one of significant public importance that they wish to hear argument upon it and express their views upon it.

75. In any event, I am extremely concerned about the question of the timetable.

76. MR JUSTICE LAWS: I need not trouble you further,

77. Miss Richards. You will have to ask the Court of Appeal