Spink & Anor, R (on the application of) v London Borough of Wandsworth

This is an appeal from a judgment delivered on 20 October 2004, [2004] EWHC 2314, by Richards J, sitting in the Administrative Court. It raises questions as to the duties that local authorities owe in respect of the needs of those who are disabled. This is a topic that has vexed the courts in the past, leading to appeals to the Court of Appeal and the House of Lords in which those tribunals have been divided. The problems have arisen out of a maze of interacting statutory provisions, which have been subject to frequent amendment. The issues that arise on this appeal are as perplexing as some that have gone before and have led the Secretary of State for Education and Skills to intervene in order to join issue with a point of interpretation of the relevant legislation advanced by Wandsworth Borough Council (‘the Council’).

The background to the dispute is tragic. Mr and Mrs Spink have two sons (‘the boys’), Henry, now aged 17 and Freddie, now aged 13. Each is very severely disabled. Mr and Mrs Spink look after them in their home, with the help of carers. That home needs a range of aids and adaptions (‘the alterations’), in order to enable the boys to be cared for safely. They will be expensive. Mr and Mrs Spink contend that the Council are under a statutory duty to provide and pay for these alterations. The Council contend that whether they owe such a duty depends upon whether Mr and Mrs Spink can reasonably be expected to pay for the alterations themselves. In order to reach a decision on this question they asked Mr and Mrs Spink to provide details of their means. Mr and Mrs Spink contend that they cannot afford to pay for the alterations, but they declined to provide the Council with information about their means, contending that these had no bearing on the Council’s duty. In this situation of impasse, Mr and Mrs Spink commenced, on behalf of their sons, judicial review proceedings. The issue directly raised in those proceedings, and which the judge determined, was whether the Council were entitled to take into account Mr and Mrs Spink’s financial resources when deciding whether or not to provide and pay for the alterations. The judge answered this question in the affirmative.

In the course of argument before the judge, another issue was identified. If the Council proceed to provide and pay for the alterations, will they have a statutory right to recover from Mr and Mrs Spink part or all of the costs that they have incurred and, if so, in what circumstances? The Council contend that, if they provide and pay for the alterations, they will have a potential right to recover their expenditure from Mr and Mrs Spink. The boys’ representatives contend that the Council will have no such right. The judge did not find it necessary to resolve this issue.

It is regrettable that judicial review proceedings have been initiated and pursued to the Court of Appeal in these circumstances. If Mr and Mrs Spink had disclosed their means to the Council, the Council might have agreed with them that they could not afford to pay for or contribute to the cost of the alterations, in which case the Council would almost certainly have agreed to carry them out without seeking to recover from Mr and Mrs Spink the cost of so doing. In that event there would have been no need to resort to the courts and to incur legal costs, which we suspect by now amount to as much or more than would have been required to carry out the alterations. We understand that the reason that Mr and Mrs Spinks were not prepared to disclose information about their means was that they sought to impose conditions of confidentiality upon the Council in respect of the information that were not acceptable to the Council, as they would have prevented the Council from verifying that information.

We were informed that, about two weeks before the hearing before us, Mr and Mrs Spink disclosed to the Council information about their means that they required should be treated as confidential. The Council have not yet had time to reach conclusions as to the impact of this information and of the terms under which it was disclosed. In the meantime, the following issues remain: (1) do the means of Mr and Mrs Spink have any bearing on the Council’s duty to the boys? (2) Will the Council have any right to recover from Mr and Mrs Spink any of the costs incurred if the Council provide the alterations? It is desirable, both in the interests of the parties and in the interests of clarifying this area of the law, that we should resolve both these issues, and we shall do so. We have heard full argument on each. At the end of the day, no alterations can be made to Mr and Mrs Spinks’ home without their consent. We would expect that before they give this they will wish to sit down with officials from the Council and work out what, if any, financial implications this will have for them. That discussion will be better informed if we succeed in clarifying the law.

We shall adopt the judge’s clear summary of the background facts, the accuracy of which has not been challenged.

The first claimant, Henry, is aged 17. He suffers from a neurotransmitter disorder and has a global learning disability. He is dependent upon support for all his functions and has to be moved in a wheelchair. He needs assistance with dressing, feeding and toileting. He needs support not only throughout the day, but also at night when, for example he has to be untangled from his bedclothes, turned over or given a drink. He attends a special school for children with severe difficulties. His most recent statement of special educational needs describes him as globally delayed in his development, with severe and complex learning difficulties which compound his physical needs, He is at the pre-verbal stage of development and has no speech sounds or words that convey meaning. He communicates his likes and dislikes through facial expression, laughing and crying.

The second claimant, Freddie, is aged 13. He was born with a diaphragmatic hernia and has an oesophageal restriction and other disabilities such as tightness of the limbs and restricted movement. He is also autistic. He needs help in dressing, toileting and bathing. He is unsteady on his feet and needs a wheelchair for longer outings. He requires adult supervision at all times. He attends the same special school as his brother. His most recent statement of special educational needs records that he usually speaks in single words. He enjoys sharing a book with an adult but is at the pre-reading stage. He is also at a very early developmental stage of drawing and cannot recognise his name in print of any of the letters of the alphabet. It is said that most of his skills appear to be around the 3-4 year level.

For some years Mr and Mrs Spink managed to look after the boys without any support from the local authority. More recently, the Council have been providing a package of personal care at a cost of over £60,000 a year.

Specialist reports have also identified a need for a range of aids and adaptations in the family home. These include a powered step lift outside the property, a powered step lift from the rear of the hall to the dining/kitchen area, an adapted bathroom with a walk-in bath or shower, a safe play area for Henry in the house, a downstairs toilet, and an adapted bed for Henry. The reports indicate that the lack of those various aids and adaptations gives rise to risks to the health and safety of the boys themselves, their parents and their other carers. As it is, both parents are said to suffer from lower back pain, which may be attributable to the amount of physical lifting and carrying that they need to do. As the boys have got older and bigger, so the problems and risks have increased.

There is no dispute that the boys’ needs do include a substantial quantity of such aids and adaptations. A report in July 2004 for the defendant recommended certain items of equipment and a number of alterations to the home, although the Council have said that some of the points need further discussion and they have not yet reached a decision on what precisely is needed.

Sections 19 ff. of the Housing, Grants, Construction and Regeneration Act 1996, as amended (“the 1996 Act”), contain a scheme for the making of disabled facilities grants (“DFGs”). The scheme was first introduced in broadly its present form by the Local Government and Housing Act 1989 (“the 1989 Act”). Responsibility for DFGs lies with the local housing authority. An applicant for a grant must be the owner or tenant of the dwelling to which the works are to be carried out: section 19. The purposes for which an application for a grant must be approved include facilitating access by the disabled occupant to the dwelling and to rooms within the dwelling, making the dwelling safe, and like matters: section 23. The amount of any grant is to be reduced where the financial resources of any relevant person, which includes any person responsible for a disabled occupant who is a child or a young person, exceed an amount laid down in regulations: section 30 and the Housing Renewal Grants Regulations 1996, as amended. The result is that the income and assets of the claimants’ parents are to be taken into account in determining any entitlement to a grant. Mr and Mrs Spink applied to the Council, as the relevant local housing authority, for a DFG over five years ago, but the application was not pursued after it became clear in discussions that, because of the means-testing provisions, it would not succeed. Mr and Mrs Spink contend that their resources have been significantly eroded over the last five years.

The judge expressed his sympathy for Mr and Mrs Spink and his admiration at the manner in which they had coped with the difficulties that they have faced in looking after the boys. We share his sympathy and his admiration.

The analysis of the legislation as it is today cannot satisfactorily be carried out without considering the effect of the legislation at the various stages of its development over the last half-century. To facilitate this task it is necessary to burden this judgment with a lengthy citation of the legislation in question.

We can commence the story with the National Assistance Act 1948 (‘the 1948 Act’), of which the following provisions in Part III, under the heading ‘LOCAL AUTHORITY SERVICES’, are relevant:

The provision that is central to this appeal was introduced by the Chronically Sick and Disabled Persons Act 1970 (‘the 1970 Act’), as follows:

Provisions in relation to charging were altered by section 17 of the Health and Social Services and Social Security Adjudications Act 1983 (‘HASSASSA’), which provided:

The Children Act 1989 (‘the Children Act’) was passed, as indicated in its preamble, ‘to reform the law relating to children; to provide for local authority services for children in need and others;…’ It made express provision for children and, by amendment, excluded children from prior enactments providing for local authority services for those, being both adults and children, in need. Part III, headed ‘LOCAL AUTHORITY SUPPORT FOR CHILDREN AND FAMILIES’ provided:

The provisions of Schedule 2 to the Children Act included the following:

Amendments made to earlier legislation under section 108 and Schedule 13 of the Children Act included:

the restriction of the application of section 29 of the 1948 Act to persons ‘aged 18 or over’;

the addition to the 1970 Act of the following section:

We propose to deal with this issue first because whether a local authority is entitled to charge for services provided may bear on the question of whether the local authority is entitled to seek knowledge of the means of the parents of a child before deciding whether it is obliged to provide the services in question.

Mr Charles Béar QC for the Council submits that, if the Council provides the services sought by the two boys under section 2 of the 1970 Act, section 17 of HASSASSA will permit the Council to charge for those services in accordance with its provisions. He reasons as follows. By section 28A of the 1970 Act, that Act applies to “disabled children in relation to whom a local authority have functions under Part III of the Children Act as it applies in relation to persons to whom section 29 of the [1948 Act] applies”. This provision simply identifies those to whom the 1970 Act applies, it does not govern the manner in which that Act applies. Section 2 of the 1970 Act imposes duties on the local authority to make arrangements “in exercise of their functions under the said section 29”. It follows that, although section 29 of the 1948 Act no longer applies to children, the local authority has to perform its duties to children under section 2 of the 1970 Act as if it were exercising its functions under section 29 of the 1948 Act. Inasmuch as section 17 of HASSASSA permits charging in respect of services provided under section 29 of the 1948 Act, it covers services provided to children pursuant to section 2 of the 1970 Act because those services are provided as if under the 1948 Act.

Mr Steven Kovats for the Secretary of State submits that the Council has misunderstood the manner in which section 28A of the 1970 Act operates. Section 2(1) of that Act imposes duties on “a local authority having functions under section 29” of the 1948 Act. So far as disabled children are concerned, section 2(1) has to be read as imposing duties on “a local authority having functions under Part III of the Children Act 1989”. Critically, the final words of section 2 have to be read as “it shall be the duty of that authority to make those arrangements in the exercise of their functions under the said Part III”.

Thus, says Mr Kovats, the provisions of Part III of the Children Act are applicable to the performance of the duties that are imposed on a local authority in relation to disabled children by section 2 of the 1970 Act. Services provided will be in the exercise of the functions of the local authority under section 17 of Children Act. Section 29 of that Act gives the local authority a power of recoupment in relation to the cost of providing the services.

Mr Richard Gordon QC for the boys, contends that the submissions made on behalf of both the Council and the Secretary of State are unsound. So far as the Council’s submissions are concerned, Mr Gordon submits that it is an absurd construction of the Children Act that expressly removes children from the ambit of section 29 of the 1948 Act only to require them to be treated as if they fell within the ambit of that section.

Mr Gordon’s attack on the Secretary of State’s submissions is a little more complex. He concedes that, so far as adults are concerned, a local authority performs the duties imposed under section 2 of the 1970 Act by exercising their functions under section 29 of the 1948 Act. Section 2 expressly so requires and the legislative scheme is coherent and effective because section 29 of the 1948 Act is a section which imposes duties to meet the needs of individuals which can be enforced by them. The Secretary of State’s contention that a local authority’s duties to disabled children fall to be performed by the exercise of its functions under section 17 of the Children Act is neither coherent nor effective. This is because, in contradistinction to section 29 of the 1948 Act, section 17 of the Children Act does not impose duties to individuals which can be enforced by them; it merely imposes ‘target duties’.

Mr Gordon submits that, so far as disabled children are concerned, section 2 of the 1970 Act now creates a free standing duty on the part of the local authority to provide services without any right to charge for these. He submits that this reflects a Government policy which is rational and which compares with that reflected by the provisions of free after-care services under section 117 of the Mental Health Act 1983 and with the ethos of the National Health Service.

Mr Gordon seeks to buttress his submissions by reference to authority. He starts by submitting that sections 21 and 29 of the 1948 Act are of similar character. With that we agree, both in the form each now is and in the form in which each was in 1948. Next Mr Gordon relies on the decision of the House of Lords in R(G) v Barnet London Borough Council [2003] UKHL 57; [2004] 2 AC 208. In that case, by a majority of 3 to 2, the House of Lords held that section 17(1) of the Children Act did not impose on a local authority a duty owed, regardless of resources, to any individual child assessed to be in need. The section imposed general duties for the benefit of children as a whole. At p. 239 Lord Hope drew a distinction between the general duty owed by a local authority under section 17(1) and the duty owed, in the circumstances that he described, under section 21 of the 1948 Act. He said:

At the hearing before us Mr Gordon submitted that this decision demonstrated that section 21, and thus by inference section 29, of the 1948 Act was a section which imposed duties enforceable by individuals. In a note sent to us after the hearing he recognised that this submission was fallacious. R v Barnet demonstrated that section 21 only gave rise to duties to individuals as a result of a direction given by the Secretary of State to use its powers under that section. Furthermore the provision that gave the Secretary of State power to give such directions was introduced by amendment in 1972, that is after the 1970 Act was introduced.

Undaunted, in his post-hearing note, and a second post-hearing note that he sent subsequently, Mr Gordon developed a variation on his theme. Section 29 of the 1948 Act had, from the time that it was drafted, a provision capable of giving rise to specific duties enforceable by individuals. This was section 29(3), which required that arrangements under the section should be made in accordance with a scheme. Section 34 required the scheme to be approved by the Secretary of State. Once a scheme was so approved then, so Mr Gordon submitted, the local authority came under a duty enforceable by individuals to introduce and give effect to it. Mr Gordon had managed to trace a direction given by the Minister in 1974, which replaced earlier “arrangements for schemes” and it was thus to be inferred that, when the 1970 Act was introduced, such arrangements were already in place. Thus, when the 1970 Act was introduced, section 29 of the 1948 Act was an Act which imposed duties enforceable by individuals.

In support of his revised case, Mr Gordon cited an observation of Schiemann LJ in R v Powys County Council, ex parte Hambidge [1998] 1 CCLR 458. That case has some relevance in the present context. It concerned services provided to a disabled adult pursuant to section 2 of the 1970 Act. The issue was whether section 17 of HASSASSA entitled the local authority to charge for these services. The Court of Appeal held that it did, upholding the decision to the same effect of Popplewell J [1998] 1 FLR 643. He had rejected arguments advanced before him by Mr Gordon which are not without interest in the present context. Mr Gordon had argued that in its original form section 29 of the 1948 Act imposed a power, which could only become a duty to the extent that a specific scheme was made, as provided for by sub-section (3). Section 34 required such scheme to be approved by the Minister. He further submitted that, when section 2 of the 1970 Act first came into force, it was free standing from any scheme under section 29. Popplewell J held at p., 650:

The citation relied upon by Mr Gordon came in a passage of Scheimann LJ’s judgment at p. 210, in which he gave his reasons for upholding the decision of Popplewell J. We shall emphasise the words relied upon by Mr Gordon:

We agree with Mr Gordon’s submissions in respect of the Council’s case. The scheme of the Children Act involved removing children from, inter alia, the ambit of section 29 of the 1948 Act and this was achieved by the express amendment of section 29 which restricted its application to persons over 18. It would be perverse to read section 2 of the 1970 Act, as amended by section 28A, as requiring local authorities to behave as if section 29 still applied to children.

We do not, however, endorse Mr Gordon’s attack on the Secretary of State’s case. On the contrary we consider that attack to be unsound. Sections 21 and 29 of the 1948 Act were, when introduced, sections which conferred powers on local authorities to provide services and imposed general duties to exercise those powers. In this they resembled section 17 of the Children Act, as interpreted by the majority of the House of Lords in R(G) v Barnet LBC. It may be true that duties to individuals might be created under section 29 of the 1948 Act once a scheme was approved by the Secretary of State. There is no warrant, however, for Mr Gordon’s submission that local authorities could only discharge the duties imposed by section 2 of the 1970 Act by the exercise of their functions under section 29 of the 1948 Act because the latter was capable of giving rise to duties to individuals upon the directions of the Secretary of State. On the contrary, section 2 of the 1970 Act expressly provided that local authorities were to comply with their obligations under that section in the exercise of their functions under section 29 of the 1948 Act “notwithstanding anything in any scheme made by the authority under section 29”. Just as the Secretary of State might be able to impose a duty on local authorities, enforceable by individuals, to exercise their functions under section 29, so section 2 of the 1970 Act could impose a similar duty.

Once this is appreciated, there is no difficulty in interpreting sections 2 and 28A of the 1970 Act as requiring local authorities to comply with the requirements of section 2, in so far as these apply to children, by the exercise of their functions under Part III of the Children Act, of which section 17 is particularly relevant. In our judgment this is the correct interpretation of those sections, as Mr Kovats has submitted. It is the only interpretation that produces a coherent legislative scheme.

It follows that, where a local authority provides services in accordance with obligations imposed by section 2 of the 1970 Act by exercising functions under section 17 of the Children Act, the provision of those services is subject to such rights to charge as are conferred by section 29 of the Children Act. There is nothing surprising about this result. A wide variety of services may be provided pursuant to section 2 of the 1970 Act, including the provision of recreational facilities. Prior to 1989 local authorities were entitled to charge when these were provided to children, subject always to the means of the recipient of the services. There is no reason to believe that Parliament intended to remove the right to charge. The charging regime has, however, been altered. As Mr Kovats pointed out, in the present case any right to charge Mr and Mrs Spink can only arise in respect of services provided for Freddie, who is under sixteen.

We now turn to the issue resolved by Richards J. Mr Gordon’s submissions to us are simple. The needs of a disabled child do not necessarily depend upon the means of its parents. If the parents are using their means to meet the needs of their child, there is no requirement for the local authority to intervene. Where they are not doing so, with the result that the child’s needs are not being met, section 2 applies so that the local authority is obliged to intervene. In so far as there is a right on the part of the local authority to recoup its expenditure from the parents, this merely underlines the fact that the means of the parents were irrelevant when the local authority was considering whether it was under a duty to provide the services in question.

Mr Gordon’s submission receives some support, as he points out, from statutory guidance issued by the Department of Health in a document entitled “Fairer Charging Policies for Home Care and other Non-Residential Social Services”. This relates to the power to charge conferred by section 17 of HASSASSA, and would thus apply to the provision of services to adults under section 2 of the 1970 Act. Paragraph 97 states:

Mr Gordon further submits that his interpretation of the effect of section 2 of the 1970 Act is necessary in order to ensure that the legislation complies with the positive obligations imposed by Articles 3 and 8 of the European Convention on Human Rights in relation to disabled children.

Mr Béar’s submissions fall into two parts, moderate and extreme. His moderate submission is that it is reasonable for a local authority, when considering whether it is necessary under section 2 of the 1970 Act to provide services to meet the need of a disabled child, to have regard to the likelihood that the parents will meet the need in question. To this end it is necessary for the local authority to be informed of the means of the parents. His extreme submission is that, even if it is clear that the parents will not use their resources to meet the need of a disabled child, it is not necessary for the local authority to provide for that need if the parents have the means to do so. Richards J accepted the moderate submission and held that in some circumstances the extreme submission might also be justified.

The reasoning of Richards J turned largely on the majority decision of the House of Lords in Barry [1997] AC 584. That case concerned an elderly invalid who lived on his own. The Council had assessed his needs and decided that it was necessary in order to meet these that he should be provided with home care visits twice a week for “shopping, pension, laundry and cleaning”. Subsequently the Council withdrew laundry and cleaning services on the ground that they no longer had the resources necessary to fund these services. The issue was whether, when deciding what services it was bound to provide under section 2 of the 1970 Act, the Council could properly have regard to its resources. By a majority of 3 to 2 the House of Lords held that it could.

Lord Nicholls and Lord Clyde gave speeches for the majority, with which Lord Hoffmann agreed. Lord Nicholls held that the concept of “need” was a relative one and that a local authority could have regard to its resources when assessing whether there were needs of a disabled person which it was necessary to meet. Lord Clyde adopted a similar approach. In the course of his judgment Lord Nicholls made, at p. 605, an observation of particular relevance in the present context:

Lord Lloyd also made an observation, at p. 597, the relevance of which is not diminished by the fact that he dissented from the majority result:

The reasoning of Richards J appears from the following passage in his judgment:

The issue in this case is, essentially, whether section 2 of the 1970 Act imposes on the Council the obligation to fund the considerable cost of making the alterations to the Spink [or Spinks’] family home. We question whether, when the 1970 Act came into force, it was capable of imposing such an obligation. The language describing the various matters itemised in section 2(1) differs significantly. Contrast (g) “the provision of meals” with (e) “the provision of assistance…in arranging for…the carrying out of any works of adaptation in his home”. The provision of meals could readily fall within the functions of a local authority under section 29 of the 1948 Act. It is less clear that the funding of substantial works to the home could do so or were intended to fall within (e). However the functions of a local authority under section 17 of and Part I of Schedule 1 to the Children Act are in much wider terms than section 29 of the 1948 Act and the Council accepts that they can extend to providing the alterations that the boys are alleged to need.

We would endorse the reasoning of Richards J. As a general proposition a local authority can reasonably expect that parents, who can afford the expense, will make any alterations to their home that are necessary for the care of their disabled children, if there is no alternative source of providing these. It is also reasonable to anticipate that some parents with means will not do so if they believe that this will result in the local authority making the alterations for them. (We emphasise that we are speaking in generalities and not suggesting that Mr and Mrs Spink fall into this category.) Having regard to these considerations, we agree with Richards J that a local authority can, in circumstances such as those with which we are concerned, properly decline to be satisfied that it is necessary to provide services to meet the needs of disabled children until it has been demonstrated that, having regard to their means, it is not reasonable to expect their parents to provide these.

Like the judge, we decline to answer the question of what action, if any, a local authority may be obliged to take if parents neglect to care for the needs of their disabled children to an extent that threatens their rights under Article 3 or 8 of the Human Rights Convention. Mr Gordon has rightly not suggested that this is such a case. Mr and Mrs Spink are loving parents and they have demonstrated their devotion to their sons. We hope that discussion with the Council on the basis of appropriate disclosure of their means and will lead to a consensual resolution of how the needs of Henry and Freddie are to be met.

For the reasons that we have given this appeal is dismissed.

Since writing this judgment we have been made aware that some of the circumstances to which we have referred in this judgment may have changed. We have decided that our judgment should stand on this basis of the facts presented to us.