United Kingdom House of Lords Decisions

HOUSE OF LORDS

Lord Slynn of Hadley Lord Mackay of Clashfern Lord Nicholls of Birkenhead Lord Hope of Craighead Lord Hobhouse of Wood-borough

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

ON 25 JULY 2002

[2002] UKHL 35

LORD SLYNN OF HADLEY

My Lords,

    1. I have had the advantage of reading the draft of the opinion to be given by my noble and learned friend Lord Hope of Craighead. For the reasons he gives I too would allow the appeal and make the order he proposes.

LORD MACKAY OF CLASHFERN

My Lords,

    2. I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hope of Craighead. I agree with him that this appeal should be allowed for the reasons he has given.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    3. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope of Craighead. For the reasons he gives I would allow this appeal and make the order he proposes.

LORD HOPE OF CRAIGHEAD

My Lords,

    4. Among the duties owed by a local authority under Part II of the Social Work (Scotland) Act 1968 ("the 1968 Act") is the duty to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area: section 12(1). They also owe a duty to provide suitable residential accommodation where nursing is provided for persons who appear to them to be in need of such accommodation by reason of such disabilities as infirmity, age, illness or mental disorder: section 13A(1). The appellant, Mrs Mary Robertson, is such a person. She suffers from the effects of senile dementia and requires to be cared for in secure surroundings. She will continue to be in need of nursing care for the rest of her life. The respondents, Fife Council, are the local authority for the area in which she resides. They have assessed her needs for residential care with nursing, but they have decided to refuse to enter into arrangements for such care to be provided to her. This is because they have concluded that she transferred the ownership of her house to her children for the purpose of reducing the charges for which she would be liable. The question is whether the legislation permits them to refuse to enter into these arrangements on this ground.

    5. The appellant sought judicial review of the respondents' decision in the Court of Session. On 12 January 2000 the Lord Ordinary (Lady Cosgrove) dismissed the petition: 2000 SLT 1226. The appellant reclaimed against that decision to the Inner House. On 20 April 2001 the First Division (the Lord President (Rodger) and Lord Bonomy, Lord Weir dissenting) refused the reclaiming motion: 2001 SLT 708. The appellant has now appealed against that decision to your Lordships' House.

The facts

    6. The appellant lived at 87 Main Street, Newmills until about April 1998. The house had previously belonged to her mother. On her mother's death it was divided into two separate dwelling houses. The appellant become the owner of the ground floor, and her daughter lived with her there until she died in 1995. Her brother became the owner of the two upper floors. On 9 October 1995 she disponed the ground floor house to her three sons for love, favour and affection, but she continued to occupy the house as her residence.

    7. During 1997 the appellant began to suffer from the effects of senile dementia. She visited the Jean Mackie Centre, a social work centre operated by the respondents in Dunfermline, for periods of about a week for care and supervision. But by March 1998 she had become incapable of living on her own. She was assessed by the respondents' social work service as being in need of constant long term care. On 21 April 1998 she was admitted to the Matthew Fyfe Residential Home in Dunfermline. The respondents assessed her financial position in terms of the National Assistance (Assessment of Resources) Regulations 1992 ("the 1992 Regulations") in order to determine her ability and liability to pay for the cost of her accommodation under section 22(1) of the National Assistance Act 1948. Regulation 20 of the 1992 Regulations, which is headed "capital limit", provides that no resident is to be assessed as unable to pay the full cost of his accommodation if his capital calculated in accordance with the relevant regulations exceeds £16,000. On the information which she was given the official who was responsible for carrying out this assessment concluded that the appellant had less than £16,000 in capital and accordingly that she did not require to pay any additional sum for her accommodation. At this stage the respondents were unaware of the fact that the appellant had transferred the ownership of her house to her children.

    8. The appellant's condition continued to deteriorate. In about November 1998 the respondents' social work service re-assessed her condition. They concluded that she was in need of full-time residential nursing care. The respondents then arranged for her to be transferred on 13 November 1998 to the Forth Bay Nursing Home, Kincardine which was run by Kingdom Care. On 1 December 1998 she was transferred to the Kincardine Bridge Nursing Home which is also run by Kingdom Care. She has remained there ever since.

    9. Following her move into the nursing home the respondents carried out a further assessment of the appellant's means. On this occasion the official became aware of the fact that she had transferred the ownership of her house to her children for no consideration other than for love, favour and affection about three years previously. The respondents' head of social work concluded that she had entered into this transaction, partly at least, for the purpose of reducing the charges which she would be liable to pay for her accommodation and nursing care. Regulation 25 of the 1992 Regulations, which is headed "notional capital", provides that a resident may be treated as possessing actual capital of which he has deprived himself for the purpose of decreasing the amount that he may be liable to pay for his accommodation. The respondents' decision, as recorded in their letters dated 8 December 1998 and 22 January 1999, was that the appellant had actual capital of about £7,000 and notional capital of about £35,000 to £40,000, which was the value of the house. They decided that they would no longer themselves provide her with residential nursing care until her capital assets, including her notional capital, had been depleted to £16,000. They said that they would be willing, on the other hand, to make suitable arrangements between Kingdom Care and her representatives for such nursing care to be made available to her until that stage was reached.

    10. On 30 June 1999, on consignation by the appellant of the sum of £2,500 in name of the Accountant of Court, the Lord Ordinary (Lord Marnoch) granted interim suspension of the respondents' decision and interim interdict against them from terminating the arrangement under which the appellant is afforded residential care in the nursing home. In the result the appellant continues to reside in the nursing home, and the respondents continue to pay for her care there. The point at issue in this appeal is whether this arrangement should now be terminated.

    11. It is not clear what the consequences would be for the appellant if the decision of the Court of Session were to be affirmed by your Lordships. Lord Bonomy acknowledged that the practical consequences could well be that she is cared for in conditions which are not the most desirable for her personally: 2001 SLT 708, 721J-K. Lord Weir said his understanding of the position was that ultimately the local authority would have to make arrangements for her to be accommodated inappropriately in a hospital run by the National Health Service: p 724J-K. However that may be, this is plainly a difficult and anxious case for the appellant and her family - as it is too for the respondents, whose interest is to make the best use of resources provided by the taxpayer. The answer to the problem that has been raised must be found in an interpretation of the legislation. It is complex, and it requires careful analysis.

    12. The respondents' primary argument, which was upheld in the Court of Session, is that statutory authority for the decision which they have taken is to be found in section 12(3A) and (3B) of the 1968 Act. These subsections, which were inserted by section 2 of the Community Care (Residential Accommodation) Act 1998, provide as follows:

"(3A) In determining for the purposes of this section whether to provide assistance by way of residential accommodation to a person, a local authority shall disregard so much of the person's capital as does not exceed the capital limit for the purposes of section 22 of the National Assistance Act 1948.

(3B) For the purposes of subsection (3A) of this section -

(a) a person's capital shall be calculated in accordance with assessment regulations in the same way as if he were a person for whom accommodation is proposed to be provided under this Act and whose ability to pay falls to be assessed for the purposes of section 22(3) of the National Assistance Act 1948; and

(b) "the capital limit for the purposes of section 22 of the National Assistance Act 1948" means the amount for the time being prescribed in assessment regulations as the amount which a resident's capital (calculated in accordance with such regulations) must not exceed if he is to be assessed as unable to pay for his accommodation at the standard rate."

    13. Mr Bovey QC for the respondents also submitted that section 12A(1) of the 1968 Act, as read with section 13A(1), permits a local authority to take a person's financial resources into account in deciding whether or not to provide that person with residential accommodation with nursing under that section. He said that the effect of section 12(3A), on its natural construction, was to confirm that a local authority might properly take an applicant's capital, including notional capital, into account when deciding whether or not to provide them with residential accommodation with nursing under section 13A(1).

    14. In order to understand these arguments it is first necessary to see what sections 12(1), 12A(1) and 13A(1) of the 1968 Act respectively provide. They set out the basic framework for the performance of the various duties in the field of community care services which rest on the local authority.

    15. Section 12(1) provides as follows:

"12(1) It shall be the duty of every local authority to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities (including the provision or arranging for the provision of residential and other establishments) as they may consider suitable and adequate, and such assistance may, subject to subsections (3) to (5) of this section, be given in kind or in cash to, or in respect of, any relevant person."

I shall have to examine this section, including most of its other subsections, in more detail at a later stage. For the time being it is sufficient to note that subsection (1) of section 12 falls into two parts. The first part identifies in general terms the various ways in which the local authority must promote social welfare in their area. The second part identifies the persons to whom assistance may be provided. It may be provided to "any relevant person". That expression is defined in subsection 12(2), to which I shall return.

    16. Section 12A(1), which was inserted into the 1968 Act by section 55 of the National Health Service and Community Care Act 1990, provides:

"12A (1) Subject to the provisions of this section, where it appears to a local authority that any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services may be in need of any such services, the authority -

(a) shall make an assessment of the needs of that person for those services; and

(b) having regard to the results of that assessment, shall then decide whether the needs of that person call for the provision of any such services."

The expression "community care services" is defined in section 5A(4) of the 1968 Act as meaning services, other than services for children, which a local authority are under a duty or have power to provide, or to secure the provision of, under inter alia Part II of that Act. They include the provision of residential accommodation with nursing under section 13A.

    17. Section 13A(1), which it is convenient to set out together with section 13A(2), provides as follows:

"(1) Without prejudice to section 12 of this Act, a local authority shall make such arrangements as they consider appropriate and adequate for the provision of suitable residential accommodation where nursing is provided for persons who appear to them to be in need of such accommodation by reason of infirmity, age, illness or mental disorder, dependency on drugs or alcohol or being substantially handicapped by any deformity or disability.

The arrangements made by virtue of subsection (1) above shall be made with a voluntary or other organisation or other person, being an organisation or person managing premises which are -

(a) a nursing home within the meaning of section 10(2)(a) of the Nursing Homes Registration (Scotland) Act 1938 in respect of which that organisation or person is registered or exempt form registration under that Act; or

(b) a private hospital registered under section 12 of the Mental Health (Scotland) Act 1984,

for the provision of accommodation in those premises."

    18. It is to be noted that the persons to whom residential accommodation with nursing is to be provided under section 13A are not those who fall within the definition of "a relevant person" for the purposes of section 12. They are persons who appear to the local authority to be in need of such accommodation by reason of the conditions described in section 13A(1). Furthermore, in contrast to section 12(1), which permits a local authority to provide residential and other establishments as general social welfare services, it does not enable the local authority themselves to provide accommodation where nursing is provided. The power which is given to the local authority by this section is restricted to a power to arrange for the provision of the accommodation by an organisation or person of the kind described in section 13A(2). These two features of section 13A indicate that it is a free-standing provision, the characteristics of which are more narrowly defined than those of section 12 which sets out the general social welfare duties of the local authority. Further support for this view is to be found in the opening words of section 13A(1), which state that it is "without prejudice to section 12 of this Act". Its provisions are not to be read either as restricted by or as cutting down the wider powers which are to be found in section 12.

    19. Section 12A on the other hand applies generally, wherever it appears to a local authority that any person for whom they are under a duty or have a power to provide or secure the provision of community care services may be in need of such services. So it applies both to the provision of general social welfare services under section 12 and to the provision of residential accommodation with nursing under section 13A.

    20. Finally it should be noted that section 22 of the National Assistance Act 1948 requires local authorities in England and Wales to charge for residential accommodation which has been provided or arranged by them under Part III of that Act. Section 87(3) of the 1968 Act provides that accommodation provided under that Act is to be regarded for that purpose as accommodation provided under Part III of the 1948 Act. So the charging provisions in section 22 and the regulations made under that section, which are now to be found in the 1992 Regulations, apply to Scotland also.

    21. I take as my starting point Mr Bovey's argument that section 12A permits a local authority to take a person's financial resources into account in deciding whether or not to provide that person with residential accommodation with nursing under section 13A. The exercise which the local authority are directed to undertake is divided by section 12A(1) into two parts. They must first make an assessment of the needs of the person for the services which they can provide: section 12A(1)(a). Having regard to the results of that assessment, they must then decide whether the needs of that person call for the provision of any such services: section 12A(1)(b). Mr Bovey maintained that it was at the second stage that a person's financial resources could be taken into account, and that a local authority were under no obligation to provide any of these services to a person whose capital exceeded the capital limit for the purposes of section 22 of the National Assistance Act 1948.

    22. The underlying principle is that eligibility for social services depends on need. But, as Mr Bovey pointed out, those who are able to do so are expected to pay for those services: R v Wandsworth London Borough Council, ex parte O [2000] 1 WLR 2539, 2555H per Hale LJ. These propositions are not in dispute. It is the next stage in his argument that gives rise to difficulty. He said that an assessment of the person's means was a necessary part of the process of deciding whether a person's needs "call for" the provision of any of the services. He said that the exercise to be undertaken under section 12A(1) was similar to that required by section 2(1) of the Chronically Sick and Disabled Persons Act 1970. In R v Gloucestershire County Council, Ex p Barry [1997] AC 584, 597H-598B Lord Lloyd of Berwick said that among the factors that were relevant to the question whether it was necessary to make arrangements to meet a person's needs for the purposes of that exercise was the person's means. They might be being adequately met by a friend or relation, or he might be wealthy enough to meet his needs out of his own pocket. Mr Bovey maintained that the same approach was appropriate when a local authority were considering under section 12A(1)(b) whether the person's needs called for the provision of any community care services.

    23. The First Division did not accept the argument that section 12A fell to be read in this way. In my opinion they were right not to do so. But I am unable to agree with the reasons which the Lord President gave for rejecting it at 2001 SLT 708, 714K-715G, paras 14 and 15. These reasons show that he was much influenced by the view that Parliament envisaged that the local authority have regard to the person's capital, not in the course of an exercise being conducted under section 12A, but in determining under section 12(3A) whether to provide assistance by way of residential accommodation for the purposes of section 12: p 715D-E. For reasons which I shall examine later, I do not share his view as to the nature of the exercise directed by section 12(3A). I also think that it has no bearing on a decision whether to provide residential accommodation with nursing under section 13A.

    24. The Lord President said at p 714K-L that the force of the argument that an assessment of means was a necessary part of the exercise required by section 12A(1)(b) depended on the premise that the only stage at which a local authority could have regard to the individual's capital assets was in the course of the assessment procedure carried out under that section. He developed this point in the following passage at p 715B-D:

"It is the second stage, in para (b) of subsection (1), which concerns the provision of services. The local authority have to consider whether the needs of the person 'call for' the provision of any community care services. That appears to me to be a context within which Parliament could have provided for the local authority to consider the person's capital resources. The need of a person for residential nursing care would 'call for' the local authority's service of arranging for the provision of residential accommodation with nursing under section 13A if the person concerned would be unable to pay the entire cost of such accommodation himself. Where, however, the person had, say, substantial capital resources, then the local authority might consider that his need for residential nursing care did not 'call for' that service from the council: they might decide that his need called only for them to assist him by arranging for him to contract with a nursing home to provide him with the necessary residential nursing care. This would be the basis for their decision not them selves to arrange for residential nursing care to be provided. Such a scheme would, in my view, be coherent."

But he said that he had reached the conclusion that the terms of section 12(3A) indicated that Parliament envisaged that the local authority would have regard to the person's capital, not in the course of an exercise being conducted under section 12A, but in determining whether to provide assistance by way of residential accommodation "for the purposes of" section 12: p 715D-E.

    25. It seems to me that this discussion raises three issues. The first issue ("the section 12 issue") is whether a determination of the question whether to provide assistance by way of residential accommodation under section 12 has anything to do with the provision of residential accommodation with nursing under section 13A. I have already said that section 13A appears to me to be a free-standing provision. I shall now need to look in more detail at section 12 in order to reinforce the proposition that this is so. The second issue ("the section 12(3A) issue") falls into two parts: (a) whether the direction in section 12(3A) applies where the question is not whether the local authority should provide a person with residential accommodation under section 12 but whether they should provide residential accommodation with nursing under section 13A; and (b) whether the direction to "disregard" capital under the limit in answering that question indicates that capital above the limit is to be brought into account at that stage. The third issue ("the section 12A issue") is whether, assuming that the exercise required by section 12(3A) does not apply to the provision of residential accommodation with nursing under section 13A, the local authority are entitled to have regard to the person's capital assets when they are considering under section 12A(1)(b) whether the person's needs "call for" the provision of this service by them.

The section 12 issue

    26. As the side-note indicates, section 12 is concerned with the general social welfare services of local authorities. Subsection (1), whose terms I have already quoted, sets out in general terms the various ways in which social welfare may be promoted. These include the provision or arranging for the provision of residential accommodation. The concluding words of the subsection identify the persons to whom assistance in kind or cash may be given. They may be given to "any relevant person." Prior to its amendment by section 105(4) of and paragraph 15(11) of Schedule 4 to the Children (Scotland) Act 1995 the concluding words of this subsection referred to "the persons specified in the next following subsection."

    27. Section 12(2) is in these terms:

"A person is a relevant person for the purposes of this section if, not being less than eighteen years of age, he is in need requiring assistance in kind or, in exceptional circumstances constituting an emergency, in cash, where the giving of assistance in either form would avoid the local authority being caused greater expense in the giving of assistance in another form, or where probable aggravation of the person's need would cause greater expense to the local authority on a later occasion."

Prior to its amendment by section 105(4) of and paragraph 15(11) of Schedule 4 to the Children (Scotland) Act 1995 this subsection began with the words "The persons specified for the purpose of the foregoing section are". Paragraph (a), which dealt with children, has now been deleted. Paragraph (b), which deals with persons in need requiring assistance, remains. In my opinion the effect of section 12(2) is to define the persons to whom the local authority may provide the services mentioned in section 12(1).

    28. A person cannot qualify as a "relevant person" for the purposes of section 12 unless he is "in need requiring assistance" in kind or in cash. This is an important phrase, as it provides the context for section 12(3A). It has two components. The person must be a person in need. And he must be person requiring assistance. The fact that these components refer to different things can be demonstrated in the following way.

    29. The persons specified in section 12(2) prior to its amendment by the 1995 Act were (a) children requiring assistance and (b) persons in need requiring assistance. The expression "persons in need", which was a condition that had to be satisfied to bring the person in under paragraph (b), was defined in section 94(1) in these terms:

" 'persons in need' means persons who,

(a) are in need of care and attention arising out of infirmity, youth or age; or

(b) suffer from illness or mental disorder or are substantially handicapped by any deformity or disability; or

(c) have been rendered homeless and are in need of temporary accommodation; or

(d) being persons prescribed by the Secretary of State who have asked for assistance, are, in the opinion of the local authority, persons to whom the authority may appropriately make available the services and facilities provided by them under this Act."

Paragraph (c) of that definition was repealed by the Housing (Homeless Persons) Act 1977, but the remainder of the definition remains in force. It has to be read together with section 12(6), which was inserted by paragraph 10(5) of Schedule 9 to the National Health Service and Community Care Act 1990, which provides:

"For the purposes of subsection (2) of this section "person in need" includes a person who is in need of care and attention arising out of drug or alcohol dependency or release from prison or other form of detention."

These various definitions seem to me to be directed exclusively to the question whether the person was a person "in need." For an answer to the question whether a person in need is also a person "requiring assistance" it is necessary to look elsewhere in section 12.

    30. Prior to the insertion of subsections (3A) and 3(B) by section 2 of the Community Care (Residential Accommodation) Act 1998, the remainder of section 12 dealt with the circumstances in which assistance in kind or cash could be given. In subsection (3) it was provided that before assistance in cash could be given to a person under subsection (1) the local authority had to have regard to his eligibility for assistance from any other statutory body and, if he was so eligible, to the availability to him of that assistance in his time of need. In other words, the function of this subsection was to direct the attention of the local authority to the question whether the person in need was a person "requiring assistance" in cash. In subsection (4) it was provided that assistance given in kind or cash to persons under that section might be given unconditionally or subject to such conditions as to the repayment of the assistance, or of its value, whether in whole or in part, as the local authority might consider reasonable having regard to the means of the person receiving the assistance and to the eligibility of the person for assistance from any other statutory body.

    31. That was the state of section 12 at the stage when sections 12A and 13A were inserted into the 1968 Act by sections 55 and 56 of the National Health Service and Community Care Act 1990. The question then is whether, as the Lord President put it at p 715E-F, in performing their duty under section 13A a local authority are to be seen as simultaneously performing their duty under section 12.

    32. In my opinion section 12(4) shows that a person in need requiring assistance was not to be denied assistance merely because the means of the person were such that he would be able to repay its value in whole to the local authority. This interpretation is consistent with the guidance on the assessment of the individual needs of adults for community care services which is given in the Social Work Services Group Circular SWSG11/91. Paragraph 11 of the circular states:

"Charges for Services

Separate guidance will be issued in due course on the powers and duties of local authorities to charge for social work services (including community care services). This will cover the statutory requirements in section 22 of the National Assistance Act 1948 for residential and, in due course, independent nursing home care, as well as the discretion afforded to authorities under section 87 of the 1968 Act for other social work services. The underlying principle will be that local authorities should institute arrangements for users of services of all types to pay what they can reasonably afford towards their costs. But the provision of services, whether or not the local authority is under a statutory duty to make provision, should not be related to the ability of the user or their families to meet the costs. The assessment of financial means should, therefore, follow the assessment of need and decisions about service provision."

    33. Section 5(1) provides that local authorities shall perform their functions under the general guidance of the Secretary of State. In R v London Borough of Islington, Ex p Rixon [1997] ELR 66, 71A Sedley J observed that "guidance" is less than "direction", and that the word "general" emphasises the non-prescriptive nature of what is envisaged. But, as he said at p 71C-D, the effect of the statute is that local authorities are required to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course. Lord Bonomy acknowledged at p 722B-C that paragraph 11 could be read as guidance that financial resources are not relevant to the determination whether to provide care in an individual case, but he said that such an interpretation would be inconsistent with the current legislative provisions. In my opinion that is the way in which paragraph 11 should be read, and I also consider that this interpretation of it is consistent with the legislation as properly construed.

    34. A comparison of the words used in sections 12(1) and 13A(1) seems to me to indicate that section 13A has characteristics which are defined more narrowly than those in section 12 and that it was intended to be self-contained. First, there are the persons to whom the service may be provided. In the case of section 12, the services mentioned there may be provided to "any relevant person". That expression is defined in section 12(2), which must be read together with the definition of "persons in need" in section 94(1) and the additional provision in section 12(6). But section 13(A)(1) contains its own definition of the persons to whom the services mentioned there may be provided. As it happens, many of the characteristics which are used to describe persons in need for the purpose of the provision of general social welfare services under section 12 appear here also. But there are differences. A person released from prison or other form of detention (see section 12(6)) is not included, for example. Nor is a person in need of care and attention arising out of youth. If the purpose of section 13A was simply to introduce a new kind of social welfare service, to be added to those already available under section 12 and to be made available to the same persons, under the same conditions and in the same way, one would have expected to find that the persons to whom this new service could be provided were the same as those to whom the general range of services could be provided under section 12. But this is not so.

    35. There are other signs that section 13A is self-contained and free-standing. Neither section 12 nor section 13A contains words which indicate that the service provided under section 13A is being provided under section 12. The absence of any words to this effect is to be contrasted with the wording of section 13. This section gives power to a local authority to assist persons in need to whom they have provided facilities for the engagement in suitable work to dispose of the produce of their work. It provides:

"Where, by virtue of section 12 of this Act a local authority make arrangements or provide or secure the provision of facilities for the engagement of persons in need (whether under a contract of service or otherwise) in suitable work, that local authority may assist such persons in disposing of the produce of their work."

The words "by virtue of section 12 of this Act" and the reference to "persons in need" provide a clear link to section 12 which is absent from section 13A. Then there is the fact that the service under section 13A involves the provision of accommodation. But, in contrast to the position under section 12, the local authority do not have power to provide the accommodation themselves.

    36. So I would answer the first issue in the negative. In my opinion the provision of residential accommodation with nursing under section 13A is a separate exercise from the provision of residential accommodation under section 12. The powers and duties described in these two section are different. The duty to be performed under section 13A is not to be seen as a particular example of the general duties to be performed under section 12 but as a separate and distinct duty. This brings me to the second issue, which is whether the direction in section 12(3A) applies where the issue is not whether the local authority should provide residential accommodation under section 12, but whether they should provide residential accommodation with nursing under section 13A.

The section 12(3A) issue

    37. The way in which this issue was dealt with in the Inner House can be seen most clearly from the following passage in the Lord President's opinion at 2001 SLT 707, 715D-F, para 15:

"More particularly, as the terms of subsection (3A) indicate, Parliament envisages that the local authority would be having regard to the person's capital, not in the course of an exercise being conducted under section 12A, but in determining whether to provide assistance by way of residential accommodation "for the purposes of" section 12. There was no real dispute in the hearing before us that, in the case of residential nursing care, section 13A embodied a more particular duty to provide assistance by way of residential accommodation and that, in performing their duty under section 13A, a local authority were simultaneously performing their duty under section 12. That being so, Parliament envisages that the local authority will have regard to the person's resources when, in the light of the assessment carried out under section 12A, they are determining whether to arrange the provision of residential accommodation with nursing, in fulfilment of the duty imposed on them by sections 12 and 13A."

    38. This passage contains two propositions with which I must now deal. The first proposition is that when a local authority are performing their duty to provide residential accommodation with nursing under section 13A they are simultaneously performing their duty to provide residential accommodation under section 12. This was a necessary step in the argument that the exercise which is directed by section 12(3A) applies when a local authority are considering whether to provide residential accommodation with nursing under section 13A. Section 12(3A) does not refer to section 13A. It says that the direction applies where the local authority are determining whether to provide a person with residential accommodation for the purposes for section 12. So the only way in which it can be made to apply to section 13A is to say that the duty under section 13A is being performed simultaneously under section 12. The second proposition is that section 12(3A) shows that Parliament envisaged that the local authority would "have regard to" a person's capital when, at the stage of the assessment carried out under section 12A(1)(b), they are determining whether or not the needs of the person call for the provision of residential nursing care. Both the Lord President and Lord Bonomy read section 12(3A) as indicating that a person's capital above the limit could be taken into account in the determination: pp 714A-B, 720J. Lord Weir said at p 724F that he did not construe its terms as a requirement to take capital into account but rather as an instruction to refrain from doing so in a certain context.

    39. This issue falls therefore into two parts. The first question that needs to be examined is whether the direction in section 12(3A) applies where the question is whether the local authority should provide a person with residential accommodation with nursing under section 13A. This is the question raised by the words "for the purposes of this section" which qualify the whole of section 12(3A) and (3B). The second question is whether the direction to "disregard" capital under the limit in the determination to which section 12(3A) refers indicates that capital above the limit is to be brought into account at that stage. This is the question raised by the words "shall disregard".

    40. Section 12(3A) begins with the words:

"In determining for the purposes of this section whether to provide assistance by way of residential accommodation to a person…"

The question is whether the direction which it contains applies where the local authority are considering whether to provide a person with residential accommodation with nursing under section 13A.

    41. For the reasons which I gave when I was considering the first issue, I am of the opinion that the provision of residential accommodation with nursing under section 13A is a separate exercise from the provision of residential accommodation under section 12 and that the powers and duties described in these two section are different. That being so, I see no reason why the words "for the purposes of this section" should not simply be given their ordinary meaning. The direction in section 12(3A) is to be given effect by the local authority when they are considering whether to provide residential accommodation to a person for the purposes of section 12. I do not find in these words any basis for saying that it must be given effect when the local authority are considering whether to provide residential accommodation with nursing under section 13A.

    42. A closer examination of the subsection and of its legislative background tends to confirm this approach. The Community Care (Residential Accommodation) Act 1998, which inserted subsections (3A) and (3B) into section 12, was the product of a Private Members Bill. Its principal purpose was to incorporate into section 21 of the National Assistance Act 1948, which applies to England and Wales but not to Scotland, the judgment of the Court of Appeal in R v Sefton Metropolitan Borough Council, Ex p Help the Aged [1997] 4 All ER 532. Due to the number of elderly residents in their area the council did not have the financial resources to meet the needs of all those who were entitled to be provided with residential accommodation under section 21 of the 1948 Act as amended by section 42 of the National Health Service and Community Care Act 1990. So they established a system of prioritisation when they were considering the case of elderly persons such as the applicant Mrs Blanchard who were in need of care and attention. They were not considered to be in a priority category for the receipt of financial assistance with the provision of residential accommodation until their capital had fallen below £1,500. The Court of Appeal held that this approach was inconsistent with the statutory scheme laid down by section 22 read with section 26 of the 1948 Act, which provided a different scale from that applied by Sefton. Lord Woolf MR said at p 543h-j:

"The approach of Sefton totally defeats the intention of section 22. Sections 22 and 26 of the 1948 Act and the 1992 Regulations determine Sefton's liability once Mrs Blanchard's capital fell below £16,000. Sefton then became under an obligation to provide financial assistance. The statutory scheme rests on the assumption that care and attention is not to be regarded as "otherwise available" if the person concerned is unable to pay for it according to the means test regime provided for in section 22. Section 22(5) requires Sefton to give effect to the regulations and this Sefton has not done."

    43. The words "otherwise available" appear in section 21(1)(a) of the 1948 Act. It provides that a local authority in England and Wales are under a duty to provide 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." Section 1 of the 1998 Act has inserted into section 21 two new subsections, subsections (2A) and (2B), which provide that when determining for the purposes of subsection (1)(a) "whether care and attention are otherwise available to a person" so much of the person's capital as does not exceed the capital limit is to be disregarded. The amendment which it made to section 21 is simple and quite straightforward.

    44. It appears to have occurred to somebody that the same provision should be extended to Scotland. But the words "which is not otherwise available", which form part of the English legislation, do not appear in section 12. So it was obvious that a different provision would have to be made. The words which were used in place of those used for England are to be found in the opening words of subsection (3A), which state that the direction is to be applied by the local authority "in determining for the purposes of this section whether to provide assistance by way of residential accommodation."

    45. At first sight this formula is less precise than that which was used for England and Wales. But I think that the key to its effect is to be found in the use of the words "to provide assistance". As I said earlier when I was analysing section 12(2) in the first issue, a person "in need" must also be a person "requiring assistance" before he satisfies the definition of "a relevant person" and becomes a person to whom the local authority owes the duty described in section 12(1). So in my opinion the direction can be linked with the exercise which is to be carried out under section 12 in a way that is perfectly intelligible. Furthermore, the words "to provide assistance" do not appear anywhere in section 13A, nor do they appear in section 12A. It is, of course, far from clear why the direction was not extended to section 13A which enables a local authority in Scotland to make the same kind of provision as that which local authorities in England and Wales are enabled to do by section 21 of the 1948 Act as amended. But I think that we must take the wording of section 12(3A) as we find it. It cannot be said to be out of place in section 12, and it lacks any indication that it was intended to be applied to a determination whether to provide residential accommodation with nursing under section 13A.

    46. The mischief which was identified in R v Sefton Metropolitan Borough Council, Ex p Help the Aged [1997] 4 All ER 532 was that the council had taken account of Mrs Blanchard's capital although it was below the limit set by section 22 of the 1948 Act and the 1992 Regulations when they were determining whether the care and attention which she needed was "otherwise available" to her. It was not suggested in that case that the council were not entitled to apply the means test regime provided for in section 22 when they were considering what she should pay for the accommodation. On the contrary, the regulations required them to do so when the exercise required by that section was being carried out. Their error was really twofold. The first error was to take into account capital which was below the limit set by the regulations. The second was to do so not at the charging stage, which is the stage to which the regulations are directed, but when they were considering the prior question whether the care and attention which she required was "otherwise available" to her. The effect of the amendment to section 21 which was made by section 1 of the 1998 Act was to make it clear that capital under the limit set by the regulations was to be disregarded at that earlier stage.

    47. The majority in the Inner House read into section 12(3A) and (3B) a direction that the person's capital was to be taken into account by the local authority when they were considering whether the person was in need of assistance by way of residential accommodation. As the Lord President put it at p 714A:

"In those subsections I find the clearest possible indication that Parliament intends that, when a local authority are deciding whether to provide assistance by way of residential accommodation, they can properly have regard to the person's capital."

    48. I think, with respect, that this reads too much into the words which have been used by Parliament. The words "shall disregard" are clear and unambiguous. The subsections do not say that any capital which the person has which is above the limit is to be taken into account in determining whether to provide assistance. All they say is that capital which is below the limit is to be disregarded for that purpose. That, as I have just suggested, was the mischief in Sefton at which the provisions of the 1998 Act were directed. It was not just that the council in that case had had regard to capital which was below the limit set by the regulations. It was that regard was had by it to that capital at the wrong stage and for the wrong purpose. Capital above the limit would of course have to be taken into account at the stage of charging for the accommodation. The mischief was in taking capital below the limit into account in determining at the earlier stage whether to provide it to the person who was in need of it.

    49. It was pointed out in the Inner House that it had not previously been open to a local authority to have any regard whatever to the person's capital when it was considering whether to provide him with assistance by way of residential accommodation under section 12. That indeed is so. The furthest section 12 went in its unamended form was to provide in subsection (4) that a local authority might have regard to a person's means when they were considering whether to provide assistance in kind or in cash unconditionally or subject to conditions as to repayment. The stage to which section 22 of the 1948 Act and the regulations are directed is a different stage. It is the stage of charging for the accommodation which has been provided.

    50. The Lord President rejected the argument that subsections (3A) and (3B) were not intended to change the law in this respect. He said that it was necessary to have regard to the Act in its amended form in order to ascertain the intention of Parliament: p 713L-714A. I agree with this approach to interpretation, but it should not be pressed too far. There is no need to look behind the amendments if their effect is clear and there is no question of any ambiguity. But in this case the majority in the Inner House were attributing an intention to Parliament which was not to be found in the language of the amendment. In my opinion it was appropriate in that situation to examine the history of the legislation and the mischief to which the amendment was directed. That exercise reveals the error. In my opinion Lord Weir was right to insist at p 724F that the words used in section 12(3A) could not be construed as a requirement to take capital into account but rather as an instruction to refrain from doing so in a certain context.

    51. There remains for consideration Mr Bovey's argument that a local authority are entitled to have regard to a person's capital under section 12A(1) of the 1968 Act. This section deals with the duty of the local authority to make an assessment of the person's needs before the provision of any community care service, including the provision of residential accommodation with nursing under section 13A. The exercise which it is required to carry out under this section falls into two stages. The first is to assess the needs of the person for those services: section 12A(1)(a). The second is to decide, having regard to the results of that assessment, whether the needs of that person "call for" the provision of any such services; section 12A(1)(b). It is at the second stage, according to Mr Bovey's argument, that the local authority are entitled to take the person's capital into account.

    52. In my opinion the words "call for" are directed to the person's needs for any of the services which the local authority is able to provide, not to the question whether the person is able to pay for them. This is indicated by section 12A(2) which provides that, before deciding under section (1)(b) that the needs of any person call for the provision of nursing care, a local authority shall consult a medical practitioner. The question to which this provision is directed is whether the needs of the person are such as to require the provision of that community care service. Sections 12A(3) and 12A(4) deal with the situation where the assessment of needs reveals that the person is in need of services other than community care services, such as services provided by a Health Board under the National Health Service (Scotland) Act 1978 or under the Disabled Persons (Services, Consultation and Representation) Act 1986. There is no indication anywhere in this section that it is concerned with the person's means or that it is proper to take account of the person's capital at any stage during the exercise of assessment which it requires the local authority to carry out. So I would reject this argument.

    53. For these reasons I would hold that the respondents were in error when they refused to make arrangements for the provision to the appellant of residential accommodation with nursing under section 13A. Their error was in taking her capital, including her notional capital, into account when they were assessing her need for the provision of that service. There is no doubt that, subject to section 1 of the Community Care and Health (Scotland) Act 2002 and regulations made under it in regard to the provision of social care, the respondents are entitled to charge for the community care services which they provide. But guiding principle is that the provision of community care services to a person who is in need of them is not related to the ability of the person to meet the costs. The assessment of need and decisions as to whether they call for the provision of any of the community services come first. The assessment of means, and the requirement to pay what the person can afford, comes afterwards. Notional capital can be taken into account at the stage when charges are being made for the services. But it must be left out of account at the earlier stage when decisions are being taken to provide these services. This avoids the prospect of very real hardship which this case has demonstrated.

    54. Lastly I should mention that your Lordships' attention was drawn to the Community Care and Health (Scotland) Act 2002 which was passed by the Scottish Parliament on 6 February 2002. It was suggested that section 3 of that Act, which provides for the substitution of four new subsections in section 12 of the 1968 Act in place of subsections (3A) and (3B), had proceeded on the basis of the interpretation which had been given to these provisions by the decision of the Inner House. It is not apparent from the wording of the section that this was so. But in any event it is for your Lordships to say what these provisions mean. So I do not think that any significance can be attached to the meaning which they were understood to have when this legislation was being considered by the Parliament.

    55. I would allow the appeal and recall the interlocutor of the First Division of 20 April 2001. I would repel the respondents' second plea in law and sustain the second, third and fifth pleas in law for the appellant. It will be for the Court of Session to make such orders as may be needed to give effect to this decision when a motion is made to apply the judgment under rule 56.1 of the Rules of the Court of Session 1994. The respondents must pay the appellant's costs in this House and in the Court of Session.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,