Scottish Court of Session Decisions

Background

[1] The petitioner, who is aged 90, seeks judicial review of a decision of South Lanarkshire Council (hereinafter referred to as "the respondents") to delay providing the petitioner with a place in a nursing home.

[2] Until 30 May 2000 the petitioner resided alone. On that date he was admitted to Hairmyres Hospital, East Kilbride after falling at his home. The petitioner suffers from a number of symptoms of advanced old age. He has an extremely poor short-term memory, restricted mobility and liability to fall. He is deaf in both ears and has bilateral hearing aids. He becomes regularly confused. Tasks such as dressing himself are impossible and the petitioner is unable to look after himself.

[3] On 3 July 2000 the respondents assessed the petitioner's needs for community care services in terms of section 12A of the Social Work (Scotland) Act 1968 as amended (hereinafter referred to as "the Act") and a care plan was prepared and approved on 7 July 2000. The community care assessment and the care plan are 6/4 and 6/5 of process respectively. The petitioner's assessed needs are summarised in the care plan as including a system of supervision of washing, dressing etc., the requirement of the company of others, one-to-one interaction because of his deafness and the need for orientation and 24 hour supervision due to wandering and agitation. The care plan identified a "secure environment, i.e. nursing care" as best meeting the petitioner's needs. On 24 August 2000 the respondents wrote to the petitioner's son including a copy of the petitioner's community care assessment and advised the petitioner's son that the petitioner's name had been placed on a waiting list of persons needing nursing home care and that it would be "some months (possibly 7-8)" before public funding would become available to the petitioner. It is admitted by the respondents that the petitioner is unable afford nursing home care, although I was advised by counsel for the petitioner that the petitioner's limited resources were being used for that purpose at present. By contrast it is stated in the petition that his family are meeting the cost of such care which the petitioner's family arranged for him at the end of June 2000. The petitioner's family are stated to be unable to continue to afford to meet this expense. Whatever the position, it is clear that in accordance with the means tested regime of the National Assistance Act 1948 the petitioner cannot afford such care.

Issue

[4] The issue in the present case is whether the respondents have acted ultra vires in placing the petitioner on a waiting list in a purported fulfilment of their statutory duties towards persons in their area requiring the provision of community care services. Counsel for the respondents advised me that he did not insist upon his first plea-in-law that the petition is incompetent because the petitioner has no capacity to manage his own affairs. Moreover it was suggested that this case could have implications for funding of local authorities in Scotland and for other individuals in the local government area of the respondents who are waiting for nursing home places. At present I was advised that there are 199 people in South Lanarkshire on the waiting list for a place in a nursing home, of whom about 106 are presently in hospital.

Decision

[5] In the course of submissions counsel referred me to a number of statutory provisions as well as guidelines issued to local authorities. In addition I was referred to Robertson v Fife Council 2000 S.L.T. 1226, R. v Gloucestershire County Council and Another ex parte Barry 1997 AC 584 and R. v Sefton Metropolitan Borough Council ex parte Help The Aged and Others 1997 4 All.E.R. 532. The principal areas of dispute between the parties in this case was whether a local authority owed a specific duty to particular individuals, as opposed to the community at large, in relation to community care and whether, and if so, at what stage resources available to a local authority should be taken into account in assessing and meeting the needs of individuals for community services within its area.

[6] Section 5A of the Act requires a local authority to prepare and publish a community care plan for the provision of community care services within their area and to review that plan from time to time. In preparing any such plan or review the local authority must consult Health Boards, voluntary organisations, voluntary housing associations and other bodies. Section 12 of the Act requires the local authority to promote social welfare inter alia by making available assistance on an appropriate scale for its area and by arranging to provide or secure the provision of such facilities, including residential and other establishments, as it considers suitable and adequate. Section 13A of the Act authorises a local authority to make such arrangements as it considers appropriate with third parties managing nursing homes or private hospitals for the provision of accommodation in such institutions. Section 12A of the Act provides inter alia:

[7] The first issue which I must determine is whether the Act confers any right to community care services upon an individual in any circumstances. Having regard to the statutory scheme, I consider that sections 5A and 13A are of a general nature. The purpose of these sections is to require local authorities to make adequate provision for community care services within their geographical area. To that end local authorities must prepare and publish plans for the provision of such services within their area. They must also revise the plans and publish the modifications from time to time. The preparation of such plans and modifications will depend to some extent upon information about the needs of individuals within the local authority area. Thus the number of people waiting for a place in a nursing home is a relevant factor which will inform the preparation of a plan or the modification of an existing plan. Another relevant factor is the availability of residential places which can be provided by Health Boards, voluntary organisations and others. If the current community care plan of the respondents does not reflect the current waiting list of 199 people, the respondents should give urgent consideration to modifying the plan in accordance with section 5A. Section 13A confers upon local authorities power to enter into arrangements with third parties to enable them to fulfil their statutory duty to make adequate provision for community care services including residential accommodation where nursing is provided. Sections 5A and 13A do not, in my opinion, confer any particular rights upon individuals residing within a local authority area. By contrast I consider that in terms of section 12A and section 12 local authorities owe a duty to individuals to provide community care services to such individuals in appropriate cases. The terms of section 12A(1) are such that in appropriate individual cases, where the local authority considers someone may be in need of community care services, the local authority is required to undertake an assessment of the needs of that individual for such services. Depending upon the results of that assessment the local authority requires to decide whether the needs of the individual call for the provision of such services. I agree with the views expressed by Lady Cosgrove in Robertson v Fife Council that the duty created under section 12A(1) is a duty to assess the petitioner's needs and to decide what provision these needs require. The duty on the respondents and their power to implement the decision made under that section is created by section 12. Section 12 imposes upon local authorities a duty inter alia to provide social welfare by making available assistance on such a scale as may be appropriate for their area. I am of the opinion that once a local authority has determined that the needs of an individual in their area require the provision of particular community care services, such as residential nursing home care, and that his or her needs cannot be met in any other way, even in the short to medium term, the effect of section 12 is to impose a duty on the local authority to provide the necessary assistance to satisfy the individual's needs. In short the local authority must find a place in a residential nursing home for the individual in such circumstances. It seems to me that the clear intention of Parliament was that where a local authority had undertaken an assessment of needs and had decided that the needs of an individual called for the provision of certain community care services, the local authority had an obligation to provide such services. In my opinion the imposition of such an obligation upon local authorities towards certain individuals confers upon these individuals a right to enforce that obligation. If that were not the case, local authorities could ignore their statutory duty with impunity.

[8] The second issue for consideration is whether in exercising their functions under section 12A(1) local authorities are entitled to take into account the resources available to them in undertaking an assessment of needs of an individual for community care services or whether they are entitled to take into account available resources in determining what provision to make for an individual following upon an assessment of needs. Moreover, is a local authority entitled to purport to discharge its obligations towards an individual under section 12A(1) by placing him or her on a waiting list. The provisions of section 12A(1) only apply to a particular class of persons whom the local authority consider may be in need of community care services. Once the local authority determines that someone within that class may be in need of such services the local authority must undertake an assessment of his or her needs. When it is undertaking such an assessment of needs, I have concluded that the resources available to a local authority are irrelevant to that exercise. In assessing such needs of an individual I consider that the only relevant issues are the particular circumstances of the individual, including his or her ability to care adequately for himself or herself without any assistance from any outside agency. If an individual is unable to do so, the assessment of needs should address what support is required. The resources available to an individual are relevant at this stage of the assessment because if an individual has adequate resources to provide for his or her needs, there would be no need for the local authority to provide community care services at public expense. While I am of the opinion that the resources of an individual are relevant in the assessment of his needs, I cannot understand how it can be maintained that the resources available to a local authority are a relevant consideration at this stage of the process. In that regard I agree with the views expressed by Lord Lloyd of Berwick in R. v Gloucestershire County Council ex party Barry at p.599 where he said:

[9] This approach is also consistent with the guidance issued by the Scottish Office in Circular SWSG11/91 (No. 7/3 of process). In section 5 of that guidance it is emphasised that the assessment should be "needs-led not service-led". It also states that the assessment should "examine the needs of the individual for any form of care or support and not for particular services". In terms of the guidance the question of resources only becomes relevant at the second stage of the process when the care plan for an individual is being drawn up and decisions taken about what services should be provided to him or her.

[10] Once a local authority has completed an assessment of the needs of an individual for community care services the next stage in the process is for the local authority to decide whether the needs of that individual call for the provision of any such services in terms of section 12A(1)(b). In undertaking this exercise the local authority could of course take into account the resources available to the individual including any additional support available to the individual from neighbours and friends. This would be particularly relevant in the context of an individual who was able to live independently but who required some support within the home, such as assistance with shopping or household chores. At the other end of the spectrum where the assessment of needs discloses that the individual is not capable of living independently, even with support, and requires to be provided with assistance by way of residential accommodation, the resources available to the local authority are relevant in considering how to meet the need for residential accommodation. In meeting this need a local authority may wish to take into account the availability of sheltered accommodation with the facilities of a warden as well as accommodation within hospitals in their area in addition to the availability of accommodation in residential nursing homes. Such an approach is consistent with the guidance in Circular SWSG 11/91 to which I have already referred. In particular paragraph 6.1 states inter alia "Once an individual's needs have been assessed, the objectives of any intervention and the services to be provided or arranged to meet needs should be agreed by all the professionals involved in the form of a care plan. In drawing up the care plan the availability of resources and services for meeting needs will have to be taken into account". While I consider that the availability of resources to the local authority is a relevant consideration in that sense and at that stage of the process, I do not consider that it is an option for the local authority to determine to take no action meantime on the basis that the local authority does not have the available resources to fund a place in a residential nursing home. In the present case, in view of the results of the assessment of the needs of the petitioner for community services and having regard to his inability to make the necessary provision from his own financial resources, the respondents were under an obligation to make some provision for him in the short-term as well as promising the most satisfactory solution in the longer term several months hence. In other words, even if the respondents were unable to provide the petitioner with what might be considered to be the optimum care of a residential nursing home, they were under a duty to consider what resources were available within their area to enable the petitioner to be cared for. I do not consider that a local authority is obliged to provide the optimum solution of residential nursing home care even where that is the result of the needs assessment. It may not be possible for the local authority to do so, for example where places within a residential nursing home are not available and will not become available for some time. Moreover, there may be under-utilised resources within the Health Board or some other agency which would enable the individual to be cared for in the short to medium term pending the availability of the necessary resources for a residential nursing home place. However, in my opinion, doing nothing is not an option available to a local authority. Placing the petitioner on a waiting list for what may be several months, pending the availability of a place in a nursing home appears to me to be an abdication of the local authority's responsibility towards the petitioner. Having decided that he was unable to care for himself and that he had insufficient funds to pay for residential care

[11] There is a further difficulty for the respondents in the present case. In the original answers lodged by the respondents it was admitted that the respondents had made an assessment of the petitioner's needs in terms of section 12A(1)(a) of the Act and that the respondents had decided that the petitioner's needs called for the provision of a permanent place in a nursing home in terms of section 12A(1)(b). At the hearing before me amended answers were lodged where the admission that a decision had been taken by the respondents in terms of section 12A(1)(b) was deleted. As will be apparent from what I have already said, I am of the opinion that once a local authority determines that an individual's needs call for a particular provision the local authority is obliged to make that provision. In particular having decided that an individual requires the provision of a permanent place in a nursing home in terms of section 12A(1)(b) of the Act a local authority could not in my opinion refuse to make such a provision simply because it did not have the necessary resources. I gain support for that view from the speech of Lord Clyde in R. v Gloucestershire County Council ex parte Barry at p.610 where he said:

Although Lord Clyde was referring to a different statutory provision, I consider that the views expressed by him are apt in the context of the present statutory provisions. I was invited by counsel for the petitioner to construe the letter from the respondents dated 24 August 200 (6/1 of process) as amounting to a determination by the respondents that the petitioner's needs called for the provision of a permanent place in a nursing home and to conclude that the original admission was the proper position for the respondents to adopt. In that situation, I was urged by counsel for the petitioners to ordain the respondents to fund a place in the nursing home where the petitioner presently resides at the expense of himself or his relatives. I consider that a fair construction of the letter indicates that the respondents have determined that the petitioner requires the provision of nursing home care and that the only obstacle in his way is the lack of resources. In the circumstance of this case I have concluded that the respondents have acted ultra vires in failing to provide the petitioner with nursing home care and are obliged to do so.

Remedy

[12] I have given consideration to the appropriate remedy in this case. Although I have reached the conclusion that the respondents have acted ultra vires the question is whether I should simply pronounce a declarator to that effect or whether I should ordain the respondents to provide the petitioner with nursing home care immediately and, if so, whether that care should be in the residential home where he presently resides. While I agree with counsel for the respondents that normally it would be appropriate for the court to pronounce a declarator that the respondents had acted ultra vires and to remit the case back to the respondents for their reconsideration, I do not think that is an appropriate remedy in the present case where the respondents have determined that the petitioner should be provided with nursing home care. The only remaining issue for the respondents is to determine in which nursing home he should reside. I have, however, reached the conclusion that it would not be appropriate for me to pronounce an order of specific implement naming the nursing home in question. It should suffice for the petitioner's purposes that I pronounce a declarator that the respondents have acted ultra vires and to remit the case back to the respondents to make the necessary provision of residential nursing home care. This will enable the respondents to consider what nursing home facilities are available for the care of the petitioner and to make urgent provision for his care.