N, R (on the application of) v London Borough of Lambeth

This is an appeal by the London Borough of Lambeth against a decision of Walker J given on 20 December 2006. Permission to appeal has been granted on a consideration of the papers by Richards LJ. By their notice of appeal, the appellants, the London Borough, sought to establish that the judge had applied the wrong test in considering the application of section 21 of the National Assistance Act 1948. The judge identified it in this way:

The judge quashed the decision of the appellants to which he referred in the first paragraph of his judgment. Section 21(1) of the 1948 Act provides, insofar as is material:

Section 47(1) of the National Health Service Community Care Act 1990 (“the 1990 Act”) provides, insofar as is material:

It is common ground that arrangements made under the 1948 Act come within the definition of the Community Care Services. Section 7(1) of the Local Authority Social Services Act 1970 (“the 1970 Act”) provides:

The underlying point which arises in this appeal is the relationship between section 21(1) of the 1948 Act and section 47 of the 1990 Act. The word “need” appears in both of them and clearly both envisage an assessment of need being made. I say at once that the court is not prepared to entertain the consideration of what may be fundamental points which arise on that general question in the circumstances which have arisen. It is conceded on behalf of the appellants by Mr Holbrook that the appeal must be dismissed. The reason for that is an acceptance that, in their decision letter, which appears at page 129 of the bundle, an error was made in the consideration of the section 21 application. It was provided that:

It is accepted that a reassessment is necessary because factors other than destitution arise and were not sufficiently taken into consideration. Mr Holbrook makes the point that it is only in the recently served skeleton argument of the respondents that reliance was placed on the alleged defect in that part of the decision letter and had not appeared in a respondent’s notice. A skeleton argument was submitted by Mr Holbrook on 12 February 2007. He has submitted in a general way -- and I put it neutrally to state the underlying point -- that assessments made under section 47 of the 1990 Act have a status which impacts upon decisions under section 21 of the 1948 Act. That puts it very generally.

In fact, in the course of written and oral submissions the point has been put in different ways. Our starting point is that the court does not normally decide academic questions; that once it is accepted that the appeal must be dismissed; the court needs to be persuaded that a point is of such importance that it is appropriate for the court to decide it; but also that the circumstances of the case are such that the court can usefully and appropriately do so. The underlying question was framed in this way on 12 February; when assessing whether an application for community care services has a need for accommodation under the 1948 Act:

That does not answer the question which is the real concern of the Lambeth London Borough Council, and we dare say other councils, too. It is a question consequential to that which is the real point. I state briefly why. Guidance which is contemplated in section 7 of the 1970 Act has been issued by the Secretary of State. We have been referred in some detail to the guidance, to the circular which accompanied it and to practice guidance which does not have the same statutory effect, which has followed it. The guidance appears at page 164 of the bundle, the circular at page 201. Case examples by way of practice guidance are stated at 201. The local authority circular LAC (2002)213 appears at page 206 and is dated 28 May. I refer to the guidance itself: “(1) the guidance provides councils with social services responsibilities with a framework for determining eligibility for adult social care and (2) a fundamental aspect of the guidance is for individual councils to make only one eligibility decision with respect to adults seeking social care support, and that is whether they are eligible for help or not.”

It is stated that the National Assistance Act 1948 comes within the scope of the guidance -- paragraph 14 of the document. In paragraph 15, it is provided that councils shall use the eligibility framework specified in the eligibility criteria. That is set out at paragraph 16 and contemplates four bands: critical, substantial, moderate and low. Paragraph 18 provides that in setting their eligibility criteria councils should take account of their resources, local expectations and costs. It emerges from the guidance that different councils may, on grounds which the guidance provides, put people with a particular level of disability into different categories.

What in substance the appellants seek to do is to rely on their own assessment for the purposes of paragraph 16 to be carried forward into the assessment of need necessary under section 21 of the 1948 Act. I have attempted to put it not only neutrally but favourably to the appellants because questions have been posed, and I have already mentioned one of them, in different ways at different times. I accept that this is an important question for local authorities and I respect and indeed admire the assiduity with which the officers of the authority have attempted to pursue this appeal. If they can establish as lawful a system under which their framework under paragraph 16 can be carried forward to the section 21 assessment, without the requirement for a further and specific assessment under that paragraph, it potentially makes their financial position a good deal better.

My first reaction to the question posed, having heard submissions, was: “If the appropriate answer would be yes, so what?” The system does not deal with the central point of concern of the appellants. However, that would be a too simplistic approach to take because I accept that there is a real and more general issue as to the relationship between the two sections, and merely to answer it “yes” would suggest the proper course was to have quite separate assessments under section 47 and 21, and that is not a position which would necessarily be accepted by either party. Indeed at times in his submissions Mr Holbrook has specifically ignored it.

When granting leave Richards LJ put it this way. Clearly he understood the underlying concern of the appellants:

We have been referred by Mr Holbrook, and by Mr Rabinder Singh QC for the respondent, to a number of authorities. Mr Holbrook then relies upon the question he has posed in his skeleton argument in reply to that of the respondents, and there he puts as the question, now somewhat amended in form as a result of the court’s intervention: it reads:

In the course of argument other ways of putting it have been introduced. On the question first posed in the skeleton argument in reply, the court raised the question whether “required” was the right word, when the question was put in this way. It was submitted that the appellant brings this appeal because it desires to have an important point of principle determined: namely, when assessing a person’s eligibility to section 21 accommodation is it ‘required’ to apply its eligibility criteria as set out in facts? Argument turns primarily not on whether it is ‘required’ to do that but whether it is ‘entitled’ to do that, and that may be an important question; but it is important that, if a court is to determine it, the terms of reference have to be clearly spelt out.

At another point in his argument Mr Holbrook used the expression: “having regard to the section 47 assessment”. These are all helpful ways of putting it but it is important for the court to know, if it is deciding what is said to be a fundamental point, just how the point is put. Mr Holbrook has stressed throughout that it is a single point of principle that his clients wish to have resolved. In my judgment it requires a good deal more refinement before this court can properly consider it.

When Mr Rabinder Singh got to his feet the court was somewhat direct in inviting his assistance on the point. He said, fairly in my judgment, that he had come to answer the case for the respondent, which turns in part on his status as an asylum seeker, and it was on that basis that Mr Rabinder Singh began addressing the court. He then said, appropriately and accurately, that he is not appearing as amicus and he has not had a full opportunity to research the central point. As appears from his skeleton argument, it is clear that he came here to deal with a variety of points which might arise on the test applied by the appellants to section 47 and to section 21.

It will have by now have become obvious that I am making no comments, still less a finding, upon the merits of the case. We have been referred to authorities of the House of Lords, this court and the High Court where aspects of this issue have been considered. It has been argued that this court is bound to reach a certain answer. I am not even prepared to comment on the question whether the court might consider itself bound, preferring in the circumstances described to leave that question open. What I would accept is that the point was made in a general way to the judge as appears from paragraph 39 of the judgment. The judge, at paragraph 54 of his judgment, said this:

In the course of argument ways in which the relationship between the two sections may be decided have been canvassed. One is that in making its section 47 assessment the council are required to have regard to the duty under section 21. It was put in yet a different way at the very end of his submissions BY Mr Holbrook: namely, that it would follow from the need for section 21 accommodation that they must fall within one of the two most serious bands, which this council accepts is the category to whom assistance is given.

I do not want to criticise Mr Holbrook from looking at different ways to put the point but in circumstances where it has been put in such different ways and where Mr Rabinder Singh justifiably points out that he has not any sufficient opportunity to consider the point, it is not in my judgment appropriate for the court to do so. A further dimension is brought in at paragraph 5 of the skeleton argument in reply, where the possible factual relevance of the respondent’s relationship with Mr Minter, and whether there was any change of circumstances that would allow her to return to Uganda, is relevant.

Mr Holbrook puts that as a positive reason why the court should determine the general point. It adds to my fears about to doing so. Courts wish to decide actual cases and, when assumptions as to the facts have to be made, it becomes less and less attractive for the court to do so.

With some reluctance, because of the costs which have been incurred and because of the time spent by the court, most of the day, in considering submissions, I come to the conclusion I have. As will have become clear my conclusion is that it is not appropriate for this court to address the merits of the issue, or issues, which Mr Holbrook seeks to raise.

Accordingly, I would dismiss the appeal. I would do so on the basis of the concession made by the appellants, in my judgment rightly made, and I would make no further comment upon the merits of the appeal.

I agree.

I also agree.