QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen (on the application of
(by their litigation friend the Official Solicitor)
|- and -
|EAST SUSSEX COUNTY COUNCIL
|- and -
|THE DISABILITY RIGHTS COMMISSION
Mr Murray Hunt (instructed by Leigh Day & Co) for the claimants X and Y
Ms Beverley Lang QC and Ms Jenni Richards (instructed by the Director of Legal and Community Services) for the defendant
Mr David Wolfe (instructed by Chris Benson) for the interested party
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Mr Justice Munby:
i) The first issue ("the user independent trust issue") is whether care staff may lawfully be provided to the family by ESCC by means of a vehicle known as a 'user independent trust'. This raises a short but important point of pure law.
ii) The second issue ("the manual handling issue") concerns the legality of what is said to be ESCC's policy of not permitting care staff to lift A and B manually. This is a much more complicated issue, raising, on one view of the matter, difficult questions of law (by which I mean domestic law, human rights law and European Community law), of policy and of fact.
The statutory setting
"A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged eighteen or over who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister."
"The Secretary of State hereby approves the making by local authorities of arrangements under section 29(1) of the Act for all persons to whom that subsection applies and directs local authorities to make arrangements under section 29(1) of the Act in relation to persons who are ordinarily resident in their area for all or any of the following purposes:
(a) to provide a social work service and such advice and support as may be needed for people in their own homes or elsewhere;
(b) to provide, whether at centres or elsewhere, facilities for social rehabilitation and adjustment to disability including assistance in overcoming limitations of mobility or communication;
(c) to provide, whether at centres or elsewhere, facilities for occupational, social, cultural and recreational activities and, where appropriate, the making of payments to persons for work undertaken by them."
"Where a local authority having functions under section 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 that 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; …
(e) the provision of assistance for that person in arranging for the carrying out of works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience; …
then … it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29."
" … where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of such services, the authority –
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."
User independent trusts
i) by article 19 that there shall be not less than five members of the Board (called "Trustees"), being X and Y – both appointed for life pursuant to article 28 – A and B's advocate, a representative from East Sussex Disability Association and a representative from ESCC;
ii) by article 2 that the members of the Company are the Trustees;
iii) by article 23 that a meeting of the Board at which a quorum is present may exercise all the powers exercisable by the Board;
iv) by article 34 that questions arising at a meeting of the Board shall be decided by majority, subject to the Chairman's casting vote;
v) by article 35 that the quorum for the transaction of the business of the Board shall be three; and
vi) by article 36 that the Board may act notwithstanding any vacancies.
i) by clause 3 that
"The object for which the Company is established is for the sole purpose of providing, or arranging to be provided support, rehabilitation, recreational activities and care to [A] and [B]."
ii) by clause 5 that
"The income of the Company shall be applied solely towards the promotion of the objects as set forth in this Memorandum of Association and no part shall be paid or transferred directly or indirectly, by way of dividend, bonus or otherwise by way of profit, to members of the Company and no Trustee … shall be appointed to any office of the Company paid by salary or fees or receive any remuneration or other benefit in money or money's worth from the Company".
iii) by clause 8 that
"If the Company is wound up or dissolved and … there remains any money or property it shall not be paid to or distributed among the Members of the Company, but shall be given or transferred to the Statutory Authority responsible under Community Care Legislation to provide support, rehabilitation and care to [A] and [B]."
"This Agreement aims to enable as far as is possible flexible provision of care services to [A] and [B] to be arranged by [the Company]. These arrangements will in turn support [X] and [Y] in their role as carers."
"This Agreement establishes responsibilities on the part of [ESCC] and [the Company], as set out in the attached Service Specification … as it relates to the individual care plans for [A] and [B]".
"The [Company] will take responsibility for recruiting and selecting suitable Personal Assistants when needed."
i) the annual sum of £71,964 in monthly instalments "to pay for the services required to meet the identified needs of [A] and [B], as set out in their individual care plans";
ii) an additional sum, up to a maximum of £150 per calendar month based on the expenditure actually incurred by the Company; and
iii) the operational costs of the Company subject to an as yet unspecified maximum sum.
i) No payments are made by ESCC either to A and B or to X and Y. All payments under the Contract are made to the Company – the user independent trust.
ii) The Company is a legal entity quite distinct from both A and B and from X and Y: Salomon v Salomon & Co  AC 22.
iii) X and Y do not control the Company. They do not have a majority of the votes on the Board and, since the Trustees act by majority, nor do they have a veto.
iv) The Company is a non profit-making organisation. It can make no distribution to its members and any surplus on winding-up has to be repaid to ESCC. Thus this is not a trust that can be 'broken' by the family under the rule in Saunders v Vautier (1841) 4 Beav 115.
The Community Care (Direct Payments) Act 1996
i) the proposition that prior to the Community Care (Direct Payments) Act 1996 there was absent from the legislation any provision enabling local authorities to pay money to persons requiring services under section 29 of the 1948 Act so as to enable them to buy in the services themselves rather than merely accepting the services supplied in kind by the local authority itself; and
ii) the need, as Ms Lang would have it, to bear in mind the statutory scheme for payment embodied in the Community Care (Direct Payments) Act 1996 and the limited ambit of that scheme.
"Nothing in the foregoing provisions of this section shall authorise or require … the payment of money to persons to whom this section applies".
(a) an authority have decided under section 47 of the National Health Service and Community Care Act 1990 … that the needs of a person call for the provision of any community care services … and
(b) in the case of a person –
(i) whose needs the local authority have decided call for the provision of community care services, he is of a description which is specified for the purposes of this subsection by regulations made by the Secretary of State, or
the authority may, if the person consents, make to him, in respect of his securing the provision of any of the services for which they have decided his needs call or, as the case may be, they have decided to provide or arrange to provide, a payment of such amount as … they think fit."
"In this section "community care services" has the same meaning as in section 46 of the National Health Service and Community Care Act 1990."
"Subject to paragraph (2), a person –
(a) to whom section 29 of the National Assistance Act 1948 applies, and
(b) who appears to the authority to be capable of managing a direct payment by himself or with assistance, is specified for the purposes of section 1(1)(b) of the Act."
Section 30 of the National Assistance Act 1948
"A local authority may, in accordance with arrangements made under section 29 of this Act, employ as their agent for the purposes of that section any voluntary organisation or any person carrying on, professionally or by way of trade or business, activities which consist of or include the provision of services for any of the persons to whom section 29 above applies, being an organisation or person appearing to the authority to be capable of providing the service to which the arrangements apply."
"a body the activities of which are carried on otherwise than for profit, but does not include any public or local authority."
"A local authority may, in accordance with arrangements made under section 29 of this Act, employ as their agent for the purposes of that section any voluntary organisation or other person, being an organisation or person appearing to the authority to be capable of providing the service to which the arrangements apply."
"Our intention always was that local authorities should only make arrangements for the provision of services for payment with persons professionally engaged in providing those services or otherwise providing them by way of business or trade. It was never our intention that local authorities should be able to pay people who would have provided these services on a non-commercial basis and the amendments which we have introduced into the Bill make this clear. We feel that the amendments are needed to protect local authorities from pressure to use their powers to make arrangements with private providers in ways in which the Government never intended. The amendments are therefore necessary to clarify Section 30 of the National Assistance Act 1948 and Section 45 of the National Health Services and Public Health Act 1968."
"The Secretary of State hereby approves the making by local authorities of arrangements under section 29(1) of the Act, where appropriate, with another local authority for the provision of any of the services referred to in these Approvals and Directions."
"For the avoidance of doubt, these Approvals and Directions are without prejudice to the powers conferred on local authorities by section 30(1) of the Act … "
i) by the local authority itself providing the services: section 29(1);
ii) by the local authority arranging for another local authority to provide the services: paragraph 3;
iii) by the local authority employing a suitably qualified voluntary organisation or individual to act as their agent: section 30(1); or
iv) by the local authority making a direct payment to the end-user under the 1996 Act.
Section 111 of the Local Government Act 1972
"Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do anything (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."
"may remove or arrange for the removal of the vehicle, and, in the case of a vehicle which is on a road, he may remove it or arrange for its removal from that road".
"In my view the Authority … did have power to enter into an agreement of the kind made with AADL. It was an agreement which was calculated to facilitate or was conducive or incidental to the discharge of the Authority's functions in dealing with the removal of broken down, abandoned or stolen motor vehicles under the Removal and Disposal of Vehicles Regulations 1986. In particular it would assist a constable in the exercise of his power under reg. 4 by enabling him to arrange for the removal of vehicles. Such an agreement was, in my view, well within the powers of the Authority … under s. 111 … of the Local Government Act 1972" (emphasis added).
Section 2 of the Local Government Act 2000
"(1) Every local authority are to have power to do anything which they consider is likely to achieve any one or more of the following objects—
(a) the promotion or improvement of the economic well-being of their area,
(b) the promotion or improvement of the social well-being of their area, and
(c) the promotion or improvement of the environmental well-being of their area.
(2) The power under subsection (1) may be exercised in relation to or for the benefit of—
(a) the whole or any part of a local authority's area, or
(b) all or any persons resident or present in a local authority's area.
(3) In determining whether or how to exercise the power under subsection (1), a local authority must have regard to their strategy under section 4.
(4) The power under subsection (1) includes power for a local authority to—
(a) incur expenditure,
(b) give financial assistance to any person,
(c) enter into arrangements or agreements with any person,
(d) co-operate with, or facilitate or co-ordinate the activities of, any person,
(e) exercise on behalf of any person any functions of that person, and
(f) provide staff, goods, services or accommodation to any person."
"The power under section 2(1) does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation on their powers which is contained in any enactment (whenever passed or made)."
" The power conferred by s 2 is in my judgment capable of extending to the grant of financial assistance for acquiring accommodation. The question is whether there is any 'prohibition, restriction or limitation' on that power which is contained in any other enactment. Initially, Mr Sales submitted that there was no such restriction even in relation to the provision of accommodation itself. However, he has resiled from that position and has recognised that there are certain statutory provisions which are to be found both in the Housing Act 1996 and in the Immigration and Asylum Act 1999 which would constitute limitations on the power on the authority to grant accommodation to the claimant because she is an overstayer: see the Housing Act 1996, ss 159-161 and IAA, s 118. The former provide that a local authority shall allocate housing accommodation only to those who are qualified to be allocated it; and the latter prevents accommodation being provided to those subject to immigration control save in special circumstances not applicable here. In addition, in my view s 185 of the Housing Act 1996 falls into the same category … However, Mr Sales contends that there is no 'prohibition, restriction or limitation' on the power of an authority to give financial assistance for the purpose of acquiring accommodation, either in these provisions or any other. He draws a distinction between, on the one hand, a case where a statute merely confers a power in a specific field so that any limitation arises simply because the power cannot be exercised outside the specified field; and, on the other, a case where the legislation in terms imposes an express restriction or limitation on the exercise of the power. Even in the latter situation, he says that it will be necessary in each case to scrutinise the legislation carefully to see whether, properly analysed, it is intended to provide a bar to its exercise at all, or whether it is merely intended to prevent the power being exercised under the particular legislation in which the restriction is to be found …
 In my judgment Mr Sales is correct in his construction of this provision. It is drafted in very broad terms which provide a source of power enabling authorities to do many things which they could not hitherto have done. In my view, a 'prohibition, restriction or limitation' is one which will almost always be found in an express legislative provision. I do not discount the possibility that such might arise by necessary implication, but I would have thought that would be very rare. (I note that the Guidance to which I have made reference assumes that any restriction, prohibition or limitation must be expressly spelt out in the legislation: see paras  and . However, Mr Sales did not adopt that position, and I doubt whether it must always do so as a matter of construction of s 3.) Of course, where Parliament has conferred a positive power to do X, it will by implication have denied the right for that power to be exercised to do Y, but that is merely saying the Parliament has defined a clear boundary for marking out the scope of the power. In my view it would be inapt to describe the area where no power has been conferred as constituting a 'prohibition, restriction or limitation' on the power which is contained in an enactment."
"Because of the view we take of the meaning of s 17 of the 1989 Act it is unnecessary for us to consider, as Elias J felt obliged to, the appropriateness of s 2 as a vehicle for the powers W seeks to invoke, particularly where a local authority like Lambeth has not yet finalised their community strategy. Mr Goudie QC argued, however, that the power under s 2(1) of the Local Government Act 2000 would not be available to his clients because they would be unable to provide accommodation to W and her family because of the "prohibition, restriction or limitation on their powers" (see s 3(1)), which is contained in ss 190(3) and 185 of the Housing Act 1996. The language of those provisions is, however, strikingly different from the language of s 122(5) of the Immigration and Asylum Act 1999 … Section 190(3), for example, merely provides that a local housing authority has a more limited duty in cases where an applicant is not found to have a priority need. It does not constitute a prohibition, restriction or limitation on their powers. In any event, even if a local housing authority's powers were indeed limited in the ways suggested by Mr Goudie QC, these provisions say nothing about the powers of social service authorities, and we can see nothing in s 3(1) of the Local Government Act 2000 to preclude a social service authority from providing financial help, or temporary accommodation, to the family of a child in need if they think fit."
"A person is not eligible for assistance under this Part if he is a person from abroad who is ineligible for housing assistance."
"(1) This section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance but are also satisfied that he became homeless intentionally.
(2) If the authority are satisfied that the applicant has a priority need, they shall ... secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation …
(3) If they are not satisfied that he has a priority need, they shall provide him with advice and such assistance as they consider appropriate in the circumstances in any attempts he may make to secure that accommodation becomes available for his occupation."
"No local authority may provide assistance under any of the child welfare provisions in respect of a dependant under the age of 18, or any member of his family, at any time when [certain conditions are satisfied]."
" … it is said that these provisions in the 1998 Act amount to a "prohibition, restriction or limitation" of the kind envisaged by section 3 of the 2000 Act on the powers of Lewisham to invoke section 2(1) for providing student support to the claimant.
 I am unable to agree as the powers under the 1998 Act come from a different financing regime for which the Secretary of State, and not Lewisham, is responsible. I cannot discover any suggestion in the 1998 Act that it is an exclusive and comprehensive form of funding for students so as to limit or restrict the funding powers of Lewisham. In any event, I would have difficulty in finding that the 1998 Act contained a "prohibition, restriction or limitation" affecting the subsequent 2000 Act especially as there is no reference in the 1998 Act, whether by later amendment or otherwise, to the 2000 Act. In addition, as I have already explained, section 2 of the 2000 Act is a free-standing and separate source of power given to local authorities such as Lewisham. Thus, I conclude that Lewisham did have power to give student support to the claimant pursuant to section 2(1) of the 2000 Act."
"(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing -
(a) residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; …
(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection 1(a) if his need for care and attention has arisen solely
(a) because he is destitute; or
(b) because of the physical effects, or anticipated physical effects, of his being destitute."
" … Elias J took the view that section 17 of the Children Act 1989 contained no restriction or limitation within the meaning of section 3 of the Local Government Act 2000. Section 17 merely failed to provide a power to provide accommodation …
 I take the view that, unlike the absence of power under section 17 of the Children Act 1989, the prohibition under section 21(1A) is a prohibition within the meaning of section 3. Thus, it is not open to the local authority to provide finance under the Local Government Act 2000."