England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 October 2004

Mr Justice Richards :

1. The claimants are profoundly disabled boys aged 16 and 12. Their parents have been in dispute with the London Borough of Wandsworth about the care to be provided to them and the provision of aids and adaptations in their home. That has led to the present proceedings for judicial review. At a hearing in July, McCombe J refused permission in respect of the care issue but granted permission in respect of the aids and adaptations issue, which has now come on before me for substantive hearing. The central question for decision is whether the defendant local authority is entitled to take into account the parents' financial resources when determining whether it is necessary to provide aids and adaptations for the children pursuant to section 2 of the Chronically Sick and Disabled Persons Act 1970.

Background

2. The first claimant, Henry, is aged 16. 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.
3. The second claimant, Freddie, is aged 12. He was born with a diaphragmatic hernia and has an oesophagal 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 or any of the letters of the alphabet. It is said that most of his skills appear to be around the 3-4 year level.
4. The immense burden that all this places cumulatively on the boys' parents can readily be appreciated. It is dealt with in greater detail in witness statements from both parents and in some of the reports that have been placed before the court. I do not think it necessary to go into the detail for the purposes of this judgement, which is concerned with a narrow, though important, legal issue. But I should record my great sympathy for the parents and my admiration for what they have done in coping with the difficulties with which they have been faced.
5. For some years the parents managed to look after the boys without any support from the local authority. More recently, the defendant authority has been providing a package of personal care at a cost of over £60,000 a year. The adequacy even of that remains a matter of controversy, but, as I have already indicated, permission has not been granted to pursue that point in these proceedings.
6. 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.
7. There does not appear to be any 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, though the defendant has said that some of the points need further discussion and it has not yet reached a decision on what precisely is needed.
8. That, however, is not the issue before the court. The main reason why no decision has yet been reached is the dispute between the parties as to whether the defendant is entitled to take into account the parents' financial resources in deciding whether it is necessary for the defendant to make the relevant provision. In order to explain the defendants' stance further, I must first describe the legal framework.

Legal Framework

9. 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").
10. 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 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.
11. The claimants' parents applied to the defendant, 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.
12. The DFG scheme and the application under it are relevant primarily as background. The focus of the present case is another piece of legislation, section 2 of the Chronically Sick and Disabled Persons Act 1970 ("the 1970 Act"). It has been contended for some time on behalf of the claimants that the issue of aids and adaptations should be considered under that provision. The defendant now agrees, whatever its previous position may have been: for present purposes I do not need to decide on the submission for the claimants that the defendant considered this case for some years by reference to the DFG scheme and agreed only at the permission hearing in July to consider it under the 1970 Act.
13. Section 2 of the 1970 Act is concerned with the provision of welfare services by the local welfare authority (the local social services authority). It reads:

"2 (1) 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;

(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 section 29 or, with the approval of the authority, in any services provided otherwise than 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 in 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;

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

then, … subject … to the provisions of section 7(1) of the Local Authority Social Services Act 1970 (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State) and to the provisions of section 7A of that Act (which requires local authorities to exercise their social services functions in accordance with directions given by the Secretary of State), it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29."

14. Section 29 of the National Assistance Act 1948, to which the opening words of section 2(1) refer, concerns the making of arrangements for adults who are blind, deaf or dumb or who have other forms of disability. But section 28A of the 1970 Act, as inserted by the Children Act 1989, provides that the 1970 Act applies with respect to disabled children as it does in relation to persons to whom section 29 of the National Assistance Act 1948 applies.
15. It appears to be accepted that the care package already provided by the defendant for the claimants is provided by way of practical assistance in the home under section 2(1)(a). It is pursuant to section 2(1)(e) that the claimants' parents seek the provision of aids and adaptations for the claimants.
16. The relationship between DFGs and section 2 of the 1970 Act is covered in a joint Department of Education and Department of Health circular issued after the introduction of the DFG scheme in the 1989 Act (now replaced by the 1996 Act). The circular is referred to as Circular 10/90 or as LBC(90)7. It does not constitute statutory guidance of the kind referred to in section 2 of the 1970 Act, i.e. guidance under section 7(1) of the Local Authority Social Services Act 1970. Paragraph 4 of the circular states that the circular is "advisory only".
17. Paragraphs 15-19 of the circular, on the role of the welfare authority, state:

"15. The existing responsibilities of welfare authorities under section 2 of the CSDP Act are unchanged. In cases of their duty to make arrangements for home adaptations, under section 2(e), the responsibility will, in many instances, be effectively discharged on their behalf by the housing authority, by the giving of a disabled facilities grant. However, the welfare authority's duty to act remains, and they may be called upon to meet this duty in two ways. The first is where the needs as assessed by the welfare authority exceed the scope for provision by the housing authority under section 114(3) of the 1989 Act and where that authority declines to use their discretionary powers under section 114(4). If the welfare authority deems the need to be established, then it will be their responsibility in these circumstances to make arrangements for this need to be met under Section 2 of the CSDP Act.

16. Such a responsibility might arise when, for instance, the welfare authority considers there is need related to the individual's social needs that demands a greater level of provision than is required for the disability alone, and where the housing authority chooses not to exercise its discretionary powers. This may occur, for example, where the size of a bedroom for a disabled child is required to be greater than is necessary for sleeping, because it needs to fulfil the role of bed/sitting room to provide more independent social space.

17. The second instance where the welfare authority may find they have a continuing duty to provide assistance concerns cases where a disabled person asks the welfare authority for financial assistance, under section 2(e) of the CSDP Act, with that part of the costs of an adaptation which he is expected to finance himself in the light of the test of resources for the disabled facilities grant. On occasion, this could be as much as the total costs of the adaptation. In such cases, the welfare authority still has a duty to assist. However, in order to maintain consistency with the new arrangements for disabled facilities grants, the welfare authority may wish to use their existing powers to charge for their services (under section 17 of the HASSASSA Act 1983) to recover the full cost of any assistance given, provided that they consider that the client is able to afford to repay this. In examining the question of financial assistance, welfare authorities are recommended to bear in mind that the amount of grant approved will have been calculated on the basis of a test of resources (described in more detail in paragraphs 64 and 65 and Appendix II below). Welfare authorities should not try to make their own separate assessment of what a grant applicant is expected to pay; but they might consider whether, in their opinion, the meeting of those costs would cause hardship. The method of charging or recovery of costs is for the welfare authority to decide; but alternatives which might be considered include loans, with or without interest, possibly secured in either case by a charge on the property, or the placing of a charge on the property for a set period.

18. Welfare authorities should, however, be alert to cases where it may be appropriate to waive reimbursement or to recover less than the full cost of the assistance given. …

19. The responsibilities of welfare authorities under section 2 of the CSDP Act 1970 to provide help with equipment are not affected by the introduction of the 1989 Act. Welfare authorities should continue to provide help with equipment in the same way as before. In particular, equipment, which can be installed and removed with little or no structural modification to the dwelling, should usually be considered the responsibility of the welfare authority. However, items such as stairlifts and through-floor lifts, which are designed to facilitate access into or around a dwelling, would, in the view of the Secretaries of State, be eligible for disabled facilities grant. With items such as electric hoists, it is suggested that any structural modification of the property – such as strengthened joists or modified lintels – could be grant aidable under the disabled facilities grant, but that the hoisting equipment itself should be the responsibility of the welfare authority. Welfare authorities can, under section 17 of the HASSASSA Act, charge for the provision of equipment. …"

18. The reference in paragraph 17 of the circular to "s.17 of HASSASSA Act 1983" is to section 17 of the Health and Social Services and Social Security Adjudications Act 1983 ("the 1983 Act"), which provides in material part:

"17 (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.

…

(3) If a person –

(a) avails himself of a service to which this section 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 appears to them that it is reasonably practicable for him to pay."

19. Subsection (2) states that the section applies to services provided under a number of listed enactments. It has been held in R v Powys CC, ex parte Hambridge [1998] 1 CCLR 458 that it also applies to services provided under the 1970 Act even though the 1970 Act is not specifically listed.
20. The Department of Health has issued statutory guidance in relation to section 17 of the 1983 Act. The document, issued in September 2003, is called "Fairer Charging Policies for Home Care and other Non-Residential Social Services". Under the heading " Partners' income and savings" it is stated:

"62. Section 17 of the HASSASSA Act 1983 envisages that councils will have regard only to an individual user's means in assessing ability to pay a charge.

63. This will mean that parents and other members of an adult user's family cannot be required to pay the charges, except in certain legal circumstances, for example, where a family member may be managing the user's own resources.

64. Councils may wish to consider in individual cases whether a user's means may include resources not held in that person's name, but to which the user has a legal entitlement. The most likely instances of this kind will arise in relation to married or unmarried couples. …"

21. Later in the guidance, under the heading "Management of charges and charging policies", it is stated:

"97. Assessment of a person's need for care should not be confused with financial assessment of a person's ability to pay a charge. Once someone has been assessed as needing a service, that service should not be withdrawn because the user refuses to pay the charge. The council should continue to provide the service, while pursuing the debt, if necessary through the civil courts. …"

The Defendant's Stance

22. The defendant's present stance is set out very clearly in a letter dated 25^th August 2004 from the Director of Social Services to the claimants' parents:

"The Council accepts that Section 2 of the Chronically Sick and Disabled Persons Act 1970 applies to your sons. The Council therefore needs to consider what adaptations may be needed by your sons within the meaning of Section 2.

The Council also has to consider whether it is necessary for the Council itself to make arrangements for any such adaptations, or whether alternatives are available – in particular, whether it can reasonably expect you as parents to make those arrangements from your own resources.

In relation to the first of the issues arising, you have already seen OT reports on adaptations (copies attached). I should make it clear that the reports do not themselves represent an assessment of need for the purposes of Section 2. For example, they do not consider what adaptations are needed having regard to their likely cost. It also does not consider whether any adaptations needed are on such a scale that it would be more sensible to consider moving to another property. However, I would be grateful if you could consider the adaptations referred to in the two reports, and let me have any comments on your view of their suitability for your children's needs within two weeks if possible.

In relation to the second of the issues referred to, the Council's position is that it is not necessary for it to make arrangements for adaptations if the disabled person concerned, or in the case of a disabled child, his parents, have sufficient resources to meet the need themselves.

I am aware that in the past, you applied for disabled facilities grant (DFG). According to the information we hold from that application, your contribution would be assessed as £40,420.83. If your means are such that the cost of the works would be covered by the amount of your contribution which would be assessed for DFG, then the Council would be unlikely, in the absence of any special circumstances, to consider it necessary for it to pay for adaptations.

However, the information we have is not current. I appreciate that in your witness statements in the judicial review, you have referred to financial difficulties. On the other side of the equation, the Council understands that you own another house in Cornwall. We would like to consider your financial position afresh and indeed, we would need to do so before we could be satisfied under Section 2 that is was necessary for us to assist with adaptations. I am aware that you find such investigation intrusive, but am afraid that it is necessary in order for the Council to carry out its tasks properly. I therefore invite you to complete the attached DFG application as a way for us to assess your financial position. If you would like to supply us with any further information or representations on this issue, we will consider those also. I would ask you to do this within two weeks."

23. Since then there have been various exchanges between the parties about the provision of financial information by the claimants' parents. In order to protect the confidentiality of such information, the parents have sought a form of undertaking about the use to which it can be put, but no agreement has been reached on the matter. The court has been told in a witness statement on behalf of the parents that they have debts that are equivalent to, or exceed, the value of the Cornwall property, but no fuller details have been provided. Nor would it be appropriate for the court to get involved in the consideration of that detail prior to a decision on it by the defendant.
24. The true sticking-point between the parties is that, in reaching a decision under section 2 of the 1970 Act, the defendant claims to be entitled to take into account the financial resources of the claimants' parents whereas it is contended on behalf of the claimants that it is not open to the defendant to take those resources into account. That is the issue which I have been asked to resolve. Although it is in one sense premature, since there has not yet been any actual decision by the defendant, I have taken the view that I should resolve it. As between the parties the issue is very far from academic. It is also a point of more general importance. The alternative to my deciding it now would have been a wasteful adjournment of the case. I have proceeded on the basis that my decision on the issue will be determinative of the present proceedings. Mr Wise for the claimants made clear that he was approaching the matter in that way and was not seeking to have the issue determined simply as a preliminary issue while keeping the proceedings otherwise alive pending an actual decision by the defendant.

The Claimants' Submissions

25. Mr Wise submits that the case turns on the meaning of "necessary" in section 2(1) of the 1970 Act. His case is that one looks at whether needs are in fact being met, not whether they could or could reasonably be met otherwise than by arrangements under section 2. If needs are being met, it is unnecessary for the local authority to make arrangements to meet them. If, however, they are not being met, it becomes necessary for the authority to meet them. It is not open to the authority to say that because the parents or another third party might be able to pay to meet the needs, it is not necessary for the authority to make arrangements to meet them. If the defendant's approach were correct, the consequence would be that profoundly disabled children would continue to have unmet needs, with the result that their health and safety was put in jeopardy. That cannot have been the intention of Parliament. It would also undermine the dignity of the children and their ability to function and interact with others.
26. Thus it is submitted that, although an authority which has made arrangements for needs to be met may be able to make a charge pursuant to section 17 of the 1983 Act if the conditions laid down by that provision are met, it cannot have regard to resources as a basis for avoiding the duty under section 2 to make such arrangements in the first place. The joint Department of Education and Department of Health circular (Circular 10/90 or LAC (90)7) is relied on in support of this construction of the legislation. It is also submitted that any exercise of discretion which failed to meet the claimants' needs would be contrary to the purposes for which the discretion was conferred (see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997).
27. It is further submitted that it would not be open in this case to the defendant to make a charge to the parents under section 17 of the 1983 Act. That is because a charge can be made only to a person to whom the service is provided – the person who avails himself of the service. Here the services would be provided only to the claimants, who are not in a position to pay a charge. It is not open to the defendant to charge the parents. There may be cases where it can properly be said that a family as a whole would avail itself of a service provided to one of its members, for example where a downstairs bathroom is installed. In this case, however, it would be a nonsense to say that the parents would be availing themselves of services provided by way of powered lifts and the like. The passages I have quoted from the statutory guidance in relation to section 17 of the 1983 Act are relied on as making it clear that Parliament did not intend parents to be charged for services provided to their disabled children. Attention is also drawn to paragraph 81 of the guidance, which states in effect that councils cannot charge carers for services provided to users purely on the grounds that the user to whom the service is provided is exempt from charges.
28. It can therefore be seen, submits Mr Wise, that the needs of disabled children are to be met irrespective of the means of their parents. It is necessary to meet such needs if they are not otherwise being met. In support of this interpretation, Mr Wise relies further on the requirement of section 3 of the Human Rights Act 1998 that legislation should be interpreted, so far as it is possible to do so, in a way that will achieve compatibility with Convention rights. In this case Article 8 is engaged, given the impact on the "physical and psychological integrity" of the claimants if the services are not provided.
29. Reference is made to a number of cases in which the positive obligations of the state towards the disabled have been considered. One is R (A and B) v East Sussex CC [2003] EWHC 167 (Admin), a judgement of Munby J. In an extensive analysis of the protection afforded to the disabled under the Convention, in particular under Articles 3 and 8, Munby J stated that the physical and psychological integrity which the state may in principle be under an obligation to take positive steps to protect under Article 8 included in that case two particularly important concepts. The first was human dignity, the second was the right of the disabled to participate in the life of the community and to have access to essential economic and social activities and to an appropriate range of recreational and cultural activities. As regards human dignity he referred to Convention case law and to the Charter of Fundamental Rights of the European Union, and stated inter alia:

"93. This brings out the enhanced degree of protection which may be called for when the human dignity at stake is that of someone who is, as A and B are in the present case, so disabled as to be critically dependent on the help of others for even the simplest and most basic tasks of day to day living. In order to avoid discriminating against the disabled – something prohibited by Article 21(1) of the Charter – one may … need to treat the disabled differently precisely because their situation is significantly different from that of the able-bodied. Moreover, the positive obligation of the State to take reasonable and appropriate measures to secure the rights of the disabled under Article 8 of the Convention (and I would add, under Articles 1,3(1), 7 and 26 of the Charter) and, in particular, the positive obligation of the State to secure their essential human dignity, calls for human empathy and humane concern as society … seeks to try to ameliorate and compensate for the disabilities faced by persons in A and B's situation….

…

98. So increasingly high standards are required. The concept of human dignity may be the same as ever, but the practical standards which require to be met are not. Changes in social standards demand better provision for the disabled if their human dignity is not to be impaired."

30. Mr Wise submits that the claimants' interpretation of section 2 of the 1970 Act respects human dignity and ensures compliance with the standards required by the Convention, whereas the defendant's interpretation fails entirely to meet those requirements.
31. Mr Wise also draws attention to observations of Munby J in R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin), [2003] 1 FLR 484. At paragraphs 66-68 of his judgment Munby J stated as follows:

"66. Secondly, however, Arts 3 and 8 of the European Convention, read in the light of Arts 3 and 37 of the UN Convention and Art 24 of the European Charter, impose on the Prison Service positive obligations to take reasonable and appropriate measures designed to ensure that:

(i) children in YOIs are treated, both by members of the Prison Service and by fellow inmates, with humanity, with respect for their inherent dignity and personal integrity as human beings, and not in such a way as to humiliate or debase them;

(ii) children in YOIs are not subjected to torture or to inhuman or degrading treatment or punishment by fellow inmates or to other behaviour by fellow inmates which impacts adversely and disproportionately on their physical or psychological integrity.

67. Such measures must strike a fair balance between the competing interests of the particular and the general interests of the community as a whole (including the other inmates of the YOI) but always having regard:

(i) first, to the principle that the best interests of the child are at all times a primary consideration;

(ii) secondly, to the inherent vulnerability of children in a YOI; and

(iii) thirdly, to the need for the State – the Prison Service – to take effective deterrent steps to prevent, and to provide children in YOIs with effective protection from, ill-treatment (whether at the hands of the Prison Service staff or of other inmates) of which the Prison Service has or ought to have knowledge.

68. In short, human rights law imposes on the Prison Service enforceable obligations, that is, obligations enforceable by or on behalf of children in YOIs:

(i) to have regard to the 'welfare' principle encapsulated in the UN Convention and the European Charter; and

(ii) to take effective steps to protect children in YOIs from any ill-treatment, whether at the hands of Prison Service staff or of other inmates, of the type which engages either Arts 3 or 8 of the European Convention. "

32. It is submitted in the present case that the positive obligation of the state to have regard to the welfare principle and to take effective steps to protect children from the risk of harm should lead to the construction of section 2 of the 1970 Act for which the claimants contend.
33. That is the basis upon which it is contended that the defendant authority is not entitled to take into account the resources of the claimants' parents in deciding whether it is necessary to make arrangements for the provision of such aids and adaptations as they are found to need.

The Defendant's Case

34. Mr Béar submits that section 2 of the 1970 Act embodies a two-fold test as the trigger for an authority's duty to make arrangements to meet a person's needs. The first element is that the person has needs within the scope of the list in (a)-(h). The second element is that it is necessary for the authority to make arrangements in order to meet those needs. Whether it is necessary is a matter of judgment for the authority. An obvious case in which it would not be necessary – and this is common ground – is where the needs are already being met, for example out of the disabled person's own resources. Another case is where the disabled person, although not in fact meeting his or her needs out of own resources, is reasonably able to do so. In those circumstances an authority could reasonably conclude that it was not necessary for it to make arrangements to meet the need. So too where a third party could reasonably be expected to provide for the disabled person's needs. The third party might be a housing authority responsible for the making of DFGs. If, for example, a housing authority were to accept that a DFG was available, it cannot sensibly be the legislative intention to impose a duty on the social services authority to make arrangements to meet the relevant needs: the social services authority could reasonably conclude that it was not necessary to make such arrangements where there was another way in which the needs could reasonably be met. Similarly, it will as a general proposition be reasonable to expect parents to use their resources to meet their children's needs. If the disabled person is a child and his or her parents have sufficient resources of their own to meet the relevant need, a local authority could reasonably conclude that it was not necessary for it to make arrangements to meet those needs. Mr Béar accepted that there might be circumstances where, although the parents have resources to meet their children's needs, an authority would nonetheless conclude that it was necessary for it to make arrangements, perhaps because of concern about the consequences for the child of a failure by the parents to meet the relevant needs. So the availability of third party resources to meet the needs is not necessarily a determining factor. It is, however, a relevant factor to which an authority can properly have regard.
35. Mr Béar further submitted that the existence of a charging power under section 17 of the 1993 Act is not inconsistent with the construction of section 2 for which he contended. First there may be cases where a disabled person is not practically able to make appropriate arrangements: he or she may not, for example, be in a position to engage builders to carry out the necessary work, in which case an authority could conclude that it was necessary for it to make the arrangements for the work to be done. Another example is in the engagement of staff, which may be very difficult for an individual but can readily be done by an authority as a bulk purchaser. So cases can arise where it is necessary for the authority to make arrangements notwithstanding that the disabled person has resources, and in those cases the charging power under section 17 of the 1983 Act can be used to ensure that the authority is refunded the cost of making the arrangements.
36. The second situation to which Mr Béar referred is where resources are insufficiently liquid for immediate payment, as where there is a need to sell an asset or the disabled person needs to make payments in instalments. Again an authority could conclude that it was necessary for it to make the relevant arrangement to meet the immediate needs, seeking reimbursement from the disabled person as and when the resources were released for that purpose. Accordingly, the charging power under section 17 does not generate any necessary implication contrary to the defendant's construction of section 2.
37. To counter Mr Wise's submission that the legislative scheme is to disregard the means of parents where disabled children are concerned, Mr Béar cited two legislative examples to contrary effect. The first is section 17 of the Children Act 1989. Section 17(1) imposes a general duty on every local authority to safeguard and promote the welfare of children within their area who are in need, by providing a range and level of services appropriate to those children's needs. An authority is entitled to seek repayment of the assistance or of its value. Both in relation to the original making of assistance and in relation to repayment, the authority is to have regard to the question of means. Thus it is provided in section 17 that:

"(7) Assistance may be unconditional or subject to conditions as to the repayment of the assistance or of its value (in whole or in part).

(8) Before giving any assistance or imposing any conditions, a local authority shall have regard to the means of the child concerned and of each of his parents."

38. The other example put forward by Mr Béar is that of the DFG scheme under the 1996 Act. He points to the fact that under the statute and implementing regulations there is means testing of grants and that, in the case of a grant to assist a disabled child occupant, account is taken of the parent's means.
39. There is a lack of coherence, it is submitted, between those examples and the claimants' construction of section 2.
40. Reliance is also placed on R v Gloucestershire County Council, ex parte Barry [1997] AC 584. That case arose out of the withdrawal of cleaning and laundry services provided under section 2 of the 1970 Act, in circumstances where the withdrawal was the result of severe budgetary cuts within the local authority. The issue was whether a local authority was entitled to take account of its own resources when assessing whether it was necessary to make arrangements to meet a person's needs. The House of Lords held by a majority that the availability of resources to the local authority was a proper consideration. Mr Béar cited the following passage from the speech of Lord Clyde, one of those in the majority (pages 610B-611C):

"The right given to the person by section 2(1) of the Act of 1970 was a right to have the arrangements made which the local authority was satisfied were necessary to meet his needs. The duty only arises if or when the local authority is so satisfied. But when it does arise then it is clear that a shortage of resources will not excuse a failure in the performance of the duty. However neither the fact that the section imposes the duty towards the individual, with the corresponding right in the individual to the enforcement of the duty, nor the fact that consideration of resources is not relevant to the question whether the duty is to be performed or not, means that a consideration of resources may not be relevant to the earlier stages of the implementation of the section which lead up to the stage when the satisfaction is achieved. The earlier stages envisaged by the section require to be distinguished from the emergence of the duty. And if that distinction is kept in mind, the risk of which counsel for Mr Barry warned, namely the risk of the duty becoming devalued into a power, should not arise.

The words "necessary" and "needs" are both relative expressions, admitting in each case a considerable range of meaning. They are not defined in the Act and reference to dictionary definitions does not seem to me to advance the construction of the subsection. In deciding whether there is a necessity to meet the needs of the individual some criteria have to be provided. Such criteria are required both to determine whether there is a necessity at all or only, for example, desirability, and also to assess the degree of necessity. Counsel for Mr Barry suggested that a criterion could be found in the values of a civilised society. But I am not persuaded that it is sufficiently precise to be of any real assistance. It is possible to draw up categories of disabilities, reflecting the variations in the gravity of such disabilities which could be experienced. Such a classification might enable comparisons to be made between persons with differing kinds and degrees of disability. But in determining the question whether in a given case the making of particular arrangements is necessary in order to meet the needs of a given individual it seems to me that a mere list of disabling conditions graded in order of severity will still leave unanswered the question at what level of disability is the stage of necessity reached. The determination of eligibility for the purposes of the statutory provision requires guidance not only on the assessment of the severity of the condition or the seriousness of the need but also on the level at which there is to be satisfaction of the necessity to make arrangements. In the framing of the criteria to be applied it seems to me that the severity of a condition may have to be matched against the availability of resources. Such an exercise indeed accords with everyday domestic experience in relation to things which we do not have. If my resources are limited I have to need the thing very much before I am satisfied that it is necessary to purchase it. It may also be observed that the range of the facilities which are listed as being the subject of possible arrangements, "the service list," is so extensive as to make it unlikely that Parliament intended that they might all be provided regardless of the cost involved. It is not necessary to hold that cost and resources are always an element in determining the necessity. It is enough for the purposes of the present case to recognise that they may be a proper consideration. I have not been persuaded that they must always and necessarily be excluded from consideration. Counsel for Mr Barry founded part of his submission on the claim that on the appellants' approach there would be an unmet need. However once it is recognised that criteria have to be devised for assessing the necessity required by the statutory provision it will be possible to allege that in one sense there will be an unmet need; but such an unmet need will be lawfully within what is contemplated by the statute. On a more exact analysis, whereby the necessity is measured by the appropriate criteria, what is necessary to be met will in fact be met and in the strict sense of the words no unmet need will exist."

41. Two passages in the judgments relate to the specific issue now before the court, though it must be emphasised that it was not an issue before the House of Lords and does not seem to have been addressed in argument. Lord Lloyd, one of the minority on the issue that was before the House of Lords, stated in relation to section 2:

"The section contemplates three separate stages. The council must first assess the individual needs of each person to whom section 29 of the Act of 1948 applies. Having identified those needs, the council must then decide whether it is necessary to make arrangements to meet those needs. There might be any number of reasons why, in the circumstances of a particular case, it might not be necessary for the local authority to make arrangements, for example, if the person's needs were being adequately met by a friend or relation. Or he might be wealthy enough to meet his needs out of his own pocket. But if there is no other way of meeting the individual's needs, as assessed, and the council is therefore satisfied that it is necessary for them to make arrangements to meet those needs, then the council is under a duty to make those arrangements. It is essential to a proper understanding of section 2 of the Act of 1970 to keep the three stages separate. Confusion arises if the stages are telescoped."

42. Lord Nicholls, one of those in the majority, gave reasons for his conclusion that an authority was entitled to have regard to its own resources, and continued:

"This interpretation does not emasculate section 2(1). The section was intended to confer rights upon disabled persons. It does so by giving them a valuable personal right to see that the authority acts reasonably in assessing their needs for certain types of assistance, and a right to have their assessed needs met so far as it is necessary for the authority (as distinct from others) to do so. I can see no basis for reading into the section an implication that in assessing the needs of disabled persons for the prescribed services, cost is to be ignored. I do not believe Parliament intended that to be the position."

43. Mr Béar submitted that both the general approach of the House of Lords in that case and the observations of Lord Lloyd and Lord Nicholls that I have cited provide clear support for the defendant's approach to section 2 in the present case.
44. Mr Béar also referred to R (Fay) v Essex County Council [2004] EWHC 879 (Admin), in particular at paragraph 27. In that case Charles J considered that the likelihood that a DFG would be available from the local housing authority to fund certain adaptations meant that it could not at present be said to be necessary for the defendant council (as distinct from others) to fund them under section 2 of the 1970 Act. The language was a clear echo of Lord Nicholls in ex parte Barry, but the point does not appear to have been the subject of argument.
45. Mr Béar acknowledged that the defendant's construction of section 2 of the 1970 Act does not accord with the approach indicated in the joint Department of Education and Department of Health circular (Circular 10/90, or LAC(90)7). He submits that an error creeps into the circular at paragraph 15 where it refers to the discharge of an authority's duty by others, whereas the correct analysis is that there is no duty in the first place where others can reasonably be expected to fund the relevant adaptations. That erroneous approach feeds into paragraph 17. The circular cannot alter the meaning of the statute or indeed give guidance as to the proper meaning of the statute. In so far as the circular is inconsistent with the defendant's construction of section 2, the circular is simply wrong and the court should not hesitate to say so.
46. I have dealt already with the submission that the existence of a charging power under section 17 of the 1983 Act is not inconsistent with the defendant's construction of section 2. It is right to note, in addition, Mr Béar's submission that section 17 does permit parents to be charged in respect of services provided to their children. The point is put forward as a matter of principle, there being no actual decision by the defendant as to charging in this case and it being said that the point may well not arise. The submission made is that a parent "avails himself" of the relevant service, within the meaning of section 17(3)(a) – all the more so if the work is being done to the parents' property. To read the provision as empowering an authority to charge the parents produces consistency with the scheme under section 17 of the Children Act 1989 and is more likely to have been the result intended by the legislature. It is further submitted that, where paragraph 63 of the September 2003 guidance states that "parents and other members of an adult user's family cannot be required to pay the charges", it is concerned with adult users and not with the parents of child users.
47. Finally, as to the arguments raised by Mr Wise under the Convention, Mr Béar submitted that there is no difficulty in squaring the defendant's construction with the Convention. Respect for personal rights is in no way infringed by a measure which permits the state to make public finding conditional on the level of resources of a disabled child's parents. Mr Béar cited the UN Convention on the Rights of the Child, in particular Article 3 which provides in paragraph (1) that the best interests of the child shall be a primary consideration, and in paragraph (2) that:

"States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her…"

48. Article 27 (2) provides that the parents or others responsible for a child "have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development". Article 23 deals specifically with disabled children and states:

"1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community

2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.

3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development."

49. Accordingly it is submitted that the defendant's construction shows no lack of respect for disabled children and is entirely consistent with international instruments.

Conclusions

50. In my judgment the defendant authority is correct in its contention that it can lawfully have regard to parental resources when deciding under section 2 of the 1970 Act whether it is necessary for it to make arrangements to meet the claimant children's needs. I cannot accept the limited construction that Mr Wise seeks to place on the section.
51. The language of the section favours the local authority's construction. It lays down the three stages identified by Lord Lloyd in ex p. Barry: (i) identification of needs, (ii) a decision on whether it is necessary for the authority to meet those needs, and (iii) if so, the resulting duty to make such arrangements. At the second stage it is for the authority to form a judgment on whether it is necessary for the authority to make such arrangements. There is nothing to suggest that the decision is to depend simply on whether the needs are currently being met or not. Had the legislative intention been to impose on an authority a duty to meet all needs that were not in fact otherwise being met, I would have expected the structure and language of the section to be different.
52. Given that the authority has to decide whether it is necessary for that authority to make arrangements to meet the needs, it would be surprising if the authority were not entitled to consider the possibility of the needs being met instead by a third party. The example given by Mr Béar, of a case where the local housing authority (which may be a different council from the local social services authority) has accepted that a DFG is available to meet the needs, is in my view a good one. It would be entirely reasonable for the local social services authority to decide in those circumstances that it was not necessary for it to make arrangements to meet the needs. I cannot see any sensible reason for reading the section as precluding a reasonable exercise of judgment of that kind. It gives rise to no Padfield failure to promote the policy and purposes of the statute. The situation is similar to that in Fay, where Charles J evidently took the view that it was not at present necessary for the local social services authority to make arrangements under section 2 to fund adaptations where the local housing authority was likely to fund them through a DFG.
53. Both the general thrust of the reasoning of the majority in ex p. Barry and the specific observations of Lord Lloyd and Lord Nicholls relied on by Mr Béar support the view that an authority, in deciding whether it is necessary for it to make arrangements, is entitled to look more widely than submitted by Mr Wise and, in particular, is entitled to look at the possibility of the needs being met by a third party. It is clear from the reasoning of the majority that the concept of "necessity" admits of some flexibility. That fits well with the proposition that an authority, in deciding whether it is necessary for it to make arrangements to meet needs, can look at whether there are other ways in which those needs can be met. Moreover Lord Lloyd and Lord Nicholls were clearly of the view that it may not be necessary for an authority to make arrangements to meet the needs if a third party can meet them. Even though the specific point was not in issue before them, their observations on it carry weight - the more so, because Lord Steyn expressed general agreement with Lord Lloyd, and Lord Hoffmann expressed general agreement with Lord Nicholls. On this point, as distinct from the question whether an authority was entitled to have regard to its own resources, there does not seem to have been any difference of view between the minority and the majority.
54. If it is accepted that an authority is entitled to look at the possibility of the needs being met by a third party, it follows that it is entitled to look at the possibility of their being met by the parents or another relative of a disabled child. Just as an authority might reasonably conclude that it was not necessary for it to make arrangements where a local housing authority had stated that a DFG was available for the purpose, so it might reasonably conclude that it was not necessary for it to make arrangements where the parents had expressed a willingness to make funds available to meet the needs. I see no difference in principle between the situations. In neither case are the needs currently being met, but in neither case would it be unreasonable to decide that it was not necessary for the authority to make arrangements to meet them.
55. The authority's decision becomes more difficult where the parents have the financial resources to meet the needs but have expressed an unwillingness to apply those resources to meeting them. The authority will need to look very carefully at the overall circumstances: whether, for example, it would be reasonable for the parents to apply their resources to meeting the needs of the disabled child, and whether the interests of the child call for intervention by the authority if it is apparent that, however unreasonably, the parents will not act to meet the child's needs. But I can see no reason in principle why it should not be open to an authority in an appropriate case, having found that the parents had available resources and that it would be reasonable for the parents to apply those resources to meeting the needs of the child, to conclude that it was not necessary for the authority itself to make arrangements to meet those needs. Whether that is in fact a reasonable judgment will depend on all the circumstances. The availability of parental resources is not necessarily a determinative factor. The key point for present purposes, however, is that the authority is entitled to have regard to parental resources as a relevant factor in reaching its decision.
56. There is nothing in the broader legislative scheme that compels a different conclusion. As Mr Béar pointed out, regard can be had to parental resources under section 17 of the Children Act 1989 and under the provisions of the 1996 Act governing DFGs. There is no evident reason why the same should not apply under section 2 of the 1970 Act.
57. I also accept Mr Béar's submissions that the existence of a charging power under section 17 of the 1993 Act is not inconsistent with my preferred construction of section 2. There are situations in which an authority could reasonably conclude that it was necessary for it to make arrangements to meet a disabled person's needs even though it would be able to recover the cost of meeting those needs by the exercise of its charging power under section 17. The fact that it has a power to charge does not mean that resources can be taken into account only in relation to the exercise of the power to charge and not in relation to the prior decision made under section 2.
58. It is unnecessary for me to resolve the argument as to whether section 17 empowers an authority to charge the parent of a disabled child for a service provided to the child, on the basis that the parent "avails himself" of the service so provided. As between the defendant authority and the claimants' parents the point has not yet arisen and may never arise. It is also a point best considered by reference to a concrete set of facts, such as the details of the actual aids and adaptations provided, since much may turn on the specific facts when determining whether the parent can be said to have "availed himself" of the services provided to the child.
59. My preferred construction of section 2 is inconsistent with passages in the joint Department of Education and Department of Health circular (Circular 10/90 or LBC(90)7) cited by Mr Wise. The circular is not an aid to construction of the statute and in my view it does not correctly represent the effect of the statute. It pays insufficient attention to the second stage of the analysis under section 2, namely the decision whether it is "necessary" for the local social services authority to make arrangements to meet the relevant needs. In any event, in so far as it states that an authority is under a duty to make such arrangements irrespective of whether the disabled person (or, by implication, the parent of a disabled child) has the resources to meet the needs, I take the view that the circular is wrong.
60. The conclusion I have reached on the construction of section 2 is in my judgment compatible with the European Convention on Human Rights, so that it is unnecessary to seek a different construction pursuant to section 3 of the Human Rights Act 1998. The decisions of Munby J cited by Mr Wise provide a detailed and illuminating analysis of the rights conferred on disabled children, and of the positive obligations imposed on the state, by Articles 3 and 8 of the Convention. They emphasise the high degree of protection that may be required in order to respect and secure human dignity. But I do not accept Mr Wise's submission that this requires a construction of section 2 whereby it is necessary for an authority to make arrangements to meet all unmet needs of a disabled child, irrespective of the existence of other ways in which those needs could be met. For an authority to consider whether the needs could be met in some other way, whether by another public authority or by some other third party such as the parents of the disabled child, does not involve any lack of respect for the child's human dignity or other Convention rights. That view is supported by the provisions of the UN Convention on the Rights of the Child which were cited by Mr Béar. They place a primary responsibility on the parents of a child and permit a parent's financial resources to be taken into account when determining whether free assistance is to be provided to a disabled child. The values embodied in the UN Convention may, as Mr Wise submitted, represent only minimum standards, but they also help to inform the court's assessment of what is required under the ECHR.
61. I stress that the issue that I am deciding is simply whether it is lawful for the defendant authority to have regard to the financial resources of the claimants' parents. In holding that it is lawful and that the ECHR does not require any different conclusion, I leave open the question whether, on the facts of a particular case, the only reasonable conclusion for an authority might be that it was necessary for it to make arrangements to meet the needs of a disabled child notwithstanding a finding that the child's parents had sufficient resources to meet those needs and could reasonably make the resources available for the purpose: for example, where the parents, however unreasonably, were clearly not going to meet the child's needs, so that those needs would clearly remain unmet and the child would remain at risk unless the authority intervened. The rights of the child and obligations of the state under the ECHR could be relevant to that decision.
62. For the reasons I have given, however, I have reached the clear conclusion that the defendant authority is entitled to have regard to the financial resources of the claimants' parents as a relevant factor in deciding whether it is necessary for the authority to make arrangements to meet the claimants' needs under section 2 of the 1970 Act. It follows that the stance adopted by the defendant in its letter of 25 August 2004 is legally correct and that the claimants' challenge to it fails.
63. Accordingly the claim for judicial review must be dismissed.