Fay, R (on the application of) v Essex County Council

The claimant is a 58-year-old man who suffers from multiple sclerosis. As a result he is substantially and permanently handicapped for the purposes of s. 29 of the National Assistance Act 1948 (NAA 1948). He receives a care package provided by the Defendant County Council (the Council). He has been assessed by the Council as a person whose home is in need of adaptations (the Adaptations). The assessment has been carried out pursuant to s. 47 of the NHS and Community Care Act 1990 (NHSCCA 1990).

The Claimant’s home is owned by his wife (Mrs F). The Claimant is not a part owner or a tenant of the property. The Claimant and Mrs F no longer lead lives as husband and wife. But for the Claimant’s disabilities he would have moved out of what was the matrimonial home. Although the marriage is over Mrs F has allowed the Claimant to continue to occupy her house, she lives there too and provides him with some day-to-day assistance. They are however, as I have said, no longer a couple.

At and before the hearing before me Mrs F was not prepared to disclose her means to the Claimant and although she was content for the Adaptations to be carried out she was not prepared to fund them, or any part of them, and thus to contribute towards their cost. Against this background (a) the Claimant had made an application or approach for a disabilities facilities grant (a DFG) from the relevant housing authority (Chelmsford Borough Council) which was not successful or was not pursued because of Mrs F’s attitude, and (b) the case was presented and argued by both the Claimant and the Council on the basis that the Adaptations could not be funded by a DFG on the basis that the means of Mrs F were directly relevant to the making of a DFG and her attitude as to their disclosure and the making any payment towards the Adaptations precluded this funding. A DFG is made under and pursuant to the provisions of the Housing Grants Construction and Regeneration Act 1996 (HGCRA 1996) and Regulations.

On the above basis the Claimant asserted that the Council had a duty under the Chronically Sick and Disabled Persons Act 1970 (CSDPA 1970) to carry out and fund the Adaptations albeit that the Claimant accepted that the most usual route for the provision of funding for adaptations to a home of the type needed in this case would be through a DFG.

Pursuant to s. 46 NHSCCA 1990 local authorities have a duty to publish a plan for the provision of community care services as defined by s. 46(3) thereof. That definition is by reference to statutes under which services may be provided by a local authority and the list of statutory provisions includes Part III of the NAA 1948 and thus services provided under s. 2 CSDPA 1970. The Claimant relies on this section which provides inter alia as follows:

“(1)

Where a local authority having functions under s. 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters namely:

(a)

the provision of practical assistance for that person in his home;

(b)

the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;

(c)

the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;

(d)

the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said s. 29 or, with the approval of the authority, in any services provided otherwise and as aforesaid which are similar to services which could be provided under such arrangements;

(e)

the provision of assistance for that person in arranging for the carrying out of any works of adaptation at his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;

(f)

facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise;

(g)

the provision of meals for that person whether in his home or elsewhere; and

(h)

the provision for that person of, or assistance for that person in obtaining, a telephone and any special equipment necessary to enable him to use a telephone.

then ------------------------------------------- it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29.

The claimant relies in particular on sub paragraph (e).

Section 17 of the Health and Social Services Adjudications Act 1983 (HASSASSA 1983) provides, as follows -

“(1)

Subject to subsection (3) below, an authority providing a service to which this section applies may recover such charge (if any) for it as they consider reasonable.

(2)

This section applies to services provided under the following enactments:

(a)

s.29 of the National Assistance Act 1948 (Welfare Arrangements for Blind, Deaf, Dumb and Crippled Persons etc.)

(b)

……..

(3)

If a person –

(a)

avails himself of a service to which this ss applies, and

(b)

satisfies the authority providing the service that his means are insufficient for it to be reasonably practicable for him to pay for the service the amount which he would otherwise be obliged to pay for it,

the authority shall not require him to pay more for it than it appears to them that it is reasonably practicable for him to pay.

(4)

Any charge under this section may, without prejudice to any other method of recovery, be recovered summarily as a civil debt.”

It follows that s.17 of HASSASSA 1983 permits the Council to charge for services which it provides under s.29 of the NAA 1948 and thus under s.2 of the CSDPA 1970. Such charges must be reasonable.

The focus of the argument before me was as to whether the Council could seek information as to the means of the Claimant and Mrs F for the purposes of determining whether the duty under s.2 CSDPA 1970 arose and thus whether “it is necessary in order to meet the needs of [the Claimant] for [the Council] to make arrangements for [the Adaptations]”.

In this context counsel for the Claimant argued that s.17 HASSASSA 1983 was a recovery provision which indicated that the means of the persons he described as the ‘service user or users’ was a factor that should not be taken into account in determining whether the duty arose under s.2 CSDPA 1970.

The focus of the argument of the parties was not on what could or could not be taken into account in ascertaining the means of the Claimant for the purposes of s.17 HASSASSA 1983, but in this context the Claimant accepted that if he had a legal entitlement to assets of Mrs F that could be taken into account for this purpose.

Neither side argued that costs could be recovered against Mrs F under s.17 HASSASSA 1983 if the Adaptations were provided under s.2 CSDPA 1970 and thus that on this basis her means would be directly relevant. My understanding was that both parties proceeded on the basis that Mrs F would not be a person from whom costs could be recovered under s. 17.

This approach of the parties gave rise to a potential mismatch between the means of the Claimant and Mrs F that could or would be taken into account for the purposes of:

As I have said:

To my mind this mismatch as to the means of the Claimant and Mrs F that could be taken into account in respect of the provision of the Adaptations through the two statutory routes gave rise to difficulties and the potential for attempts to abuse the two systems particularly as it was accepted that the primary or usual method to fund the Adaptations would be through a DFG.

On reading the papers it seemed to me that the common stance of the parties that a DFG would not be available because the means of Mrs F would have to be disclosed and taken into account before it could be made was at least arguably wrong. I raised this with the parties and invited them to refer me to the relevant Regulations. When they had done so I remained of the view that it was at least arguable that a DFG would be available on the basis that the means of Mrs F were not taken into account because they were not members of the same household.

If Chelmsford Borough Council were to accept that a DFG was, or might, be available on this basis it seemed to me that it would have a significant effect both in practice and on the legal arguments. I therefore indicated that in my view:

I heard argument on the basis of the stance that had been common to the parties and is set out above but on the understanding that I would not give judgment until the above steps had been taken.

Chelmsford Borough Council understandably indicated that it would like to take the opinion of counsel and would not be able to do so before the directions hearing on 18 February 2004. This therefore took place in their absence.

I gave directions that on or before 6 March 2004 the parties should provide me with further information including the updated position relating to a DFG and whether they wished to make further oral submissions. I also indicated that if they would prefer to provide that further information at another directions hearing (rather than in writing) such a hearing would be arranged after 8 March 2004.

As a result I have received helpful updating information from (a) counsel for the Council, (b) counsel for the Claimant who commented on the note from counsel for the Claimant and (c) Chelmsford Borough Council.

The position disclosed by the information provided is that:

As the Chelmsford Borough Council point out in its letter of 5 March 2004 the result of this is that it would appear that if Mrs F decides to make an application for a DFG the Claimant’s problems may now be remedied by virtue of the making of a DFG although, as it points out, the other aspects of an application for a DFG process cannot be prejudged.

I would like to thank Chelmsford Borough Council for its assistance in dealing with this matter. I add that, on the information before me it was not provided prior to the hearing before me with information upon which the conclusion it has now reached could have been based.

Chelmsford Borough Council also helpfully forwarded to me a letter dated 16 March 2004 to them from Mrs F saying that as the final decision in this judicial review was not known she feels that it is not appropriate for her to make an application for a DFG now, but that she would be grateful if the Chelmsford Borough Council would keep the matter open until the Claimant knows what his options will be in the light of the decision in this case. She also raises some points relating to her unwillingness to provide information as to her finances to the Claimant. It is unclear why she has done this because I note that Chelmsford Borough Council have stated that it has taken its position regardless of the outcome of these proceedings and that if Mrs F makes an application for a DFG she will not have to supply financial information about herself. This is a letter written by Mrs F from her home and it is unclear to me whether she wrote it on the basis of legal advice. I have been told that the Claimant’s solicitors were not aware that she had written this letter.

In preparing this judgment it has occurred to me that if the Adaptations were carried out by the Council pursuant to s. 2 CSDPA 1970 it is arguable that Mrs F, as well as the Claimant, would be a person who would have availed herself of the relevant services and would therefore be a person from whom the costs of the works could be recovered under s. 17 HASSASSA 1983. This argument would be based on the fact that the Adaptations would be to Mrs F’s house. This point was not raised during the hearing. If costs could be so recovered from Mrs F it would go a long way to resolving the mismatch and thus to reducing the potential abuse of the two systems for providing the Adaptations referred to earlier in this judgment (see paragraph 14 hereof).

The Adaptations can only be carried out with Mrs F’s permission. This is because she owns the property. In my view it follows that there is no substantive difference between Mrs F applying for a DFG and her agreeing to the works being carried out by the Council pursuant to a duty under s. 2 CSDPA.

In those circumstances, and having regard to the stance taken by Chelmsford Borough Council in respect of a DFG (which it was accepted was the most usual route for the funding of works similar to the Adaptations) in my judgment it cannot be said that at present it is necessary for the Council (as distinct from others) to fund the Adaptations to meet the accepted needs of the Claimant. This is because it is likely that a DFG will be available on the basis that the means of Mrs F are not taken into account.

It follows that in my judgment in the circumstances of, and relating to, the relationship between the Claimant and Mrs F the duty imposed by s. 2 CSDPA 1970 has not arisen. The same circumstances applied when these proceedings were brought and when the Council made the decision that is challenged, although at those times it seems that Chelmsford Borough Council had not been told about them and invited to consider whether it would, or would not, take the financial situation of Mrs F into account on an application for a DFG to fund the Adaptations.

In those circumstances the points as argued before me as to the construction and application of s. 2 CSDPA 1970 and the reasonableness of the Council’s decision on the information then provided to it do not, or no longer, arise.

Further both sides took an incorrect stance as to the availability of a DFG and this error had an impact of the decision making process of the Council and the arguments of both sides in the proceedings.

Also the additional legal point referred to in paragraph 25 above relating to whether costs can be recovered from Mrs F under s. 17 HASSASSA 1983 has both practical and legal consequences if for some reason it turns out that a DFG is not available or awarded on terms that are acceptable to the Claimant and Mrs F.

The practical consequence is that it may lead Mrs F to indicate that she would not give permission for the Adaptations to be carried out by the Council.

As to the construction and application of s. 2 CSDPA 1970 one possibility (which was not at the forefront of the argument of either side) is that the Council can only take into account the means of persons from whom costs cannot be recovered under s. 17 HASSASSA 1983 in deciding whether the duty under s. 2 CSDPA 1970 arises. As to the reasonableness of the Council’s decision the ability to recover costs from Mrs F is arguably a factor that supports a contention that a decision of the Council not to fund the Adaptations on the basis that it had sought, and had not been provided with, sufficient information relating to the financial position of Mrs F (alone or together with that of the Claimant) was not a reasonable decision.

In my view in the above circumstances the inaccuracies in the common position of the parties against which this case was argued mean that it would not now be appropriate for me to decide the points of construction and reasonableness on the basis of the arguments presented to me.

I will hear counsel on the relief I should give. My preliminary view is that the choice lies between (a) dismissal of the present application, and (b) its adjournment on the basis that it could be amended in the future to take account of new events and a further decision of the Council.

I like others have considerable sympathy for the Claimant and it is common ground that if the present property remains his home the Adaptations are needed. I also appreciate that there may be some difficulties for the Claimant in discussing the issues with Mrs F. But it seems to me that (a) he and his advisers must take at least some of the responsibility for the fact that Chelmsford Borough Council was not approached earlier on the basis of the approach taken after the hearing before me, and (b) the onus is now on the Claimant and Mrs F to take the next steps towards what will hopefully be a speedy and satisfactory resolution of the problems that underlie this case.