UKSSCSC CA_2985_1997 (24 November 1998)
THE SOCIAL SECURITY COMMISSIONERS
Commissioner's Case no: CA/2985/1997
SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
APPEAL FROM A SOCIAL SECURITY APPEAL TRIBUNAL
ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Mr Commissioner David Williams
But the appointee challenged several of its conclusions.
7 (1) Except in the cases specified in paragraphs (2) and (3) and subject to regulations 7A and 8, a person shall not be paid any amount in respect of an attendance allowance for any period where throughout that period he is a person for whom accommodation is provided -
(a) in pursuance of -(i) Part III of the National Assistance Act 1948 ...
(b) in circumstances where the cost of accommodation is borne wholly or partly out of public or local funds in pursuance of those enactments or of any other enactment relating to persons under disability; or
(c) in circumstances where the cost of the accommodation may be borne wholly or partly out of public or local funds in pursuance of those enactments or of any other enactment relating to persons under disability.
(6) Regulation 7 shall not apply except in a case to which paragraph (7) applies in any particular case of any period during which-(a) the person for whom the accommodation is provided-(7) This paragraph applies in the case of a person who is residing in a home owned or managed, or owned and managed, by a local authority.(i) is not entitled to income support or income-based jobseeker's allowance;(b) the whole of the cost of the accommodation is met-
(ii) is not entitled to housing benefit; or
(iii) is not a member of a married or unmarried couple for whom an amount is included for income support or income-based jobseeker's allowance purposes in the weekly applicable amount of the other member; and(i) out of his own resources, or partly out of his own resources and partly with assistance from another person or a charity;
(ii) on his behalf by another person or a charity.
21 Duty of local authorities to provide accommodation
(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing-(a) residential accommodation for persons aged eighteen or over 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 ...(2) In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection.
Section 22 deals with the financial arrangements. Section 26 allows local authorities to provide accommodation through the use of voluntary and private residential homes. The Secretary of State for Health has given directions and approval in circulars, some of which were before the tribunal. They give general power to local authorities to make provision under the Act. An extract from the most recent is set out below.
Did the Council provide the accommodation?
Did the Council act under Part III of the National Assistance Act 1948?
Should the Council be assumed to be acting within its powers?
When the local authority has statutory powers under which it is empowered to act it would to my mind be a considerable step (in the absence of clear evidence) to hold that they were acting ultra vires. Though Plas Cwmcynfelin is a private nursing home run for profit I think it is within the provisions of Part III section 26(1) of the National Assistance Act 1948. In answering the question 1 on the attendance allowance form DS46(NX) dated 6 December 1993 the authority ticked the "yes" box-the question being "was your authority involved in placing this person in the residential accommodation?" I do not think I need go so far as to say that involvement is a word of wide meaning - I think the local authority were involved in that they provided the necessary cash.
Mr Heath also drew my attention to the support for this approach in decision CA/11185/1995 on similar facts. I note that this decision, while agreeing with CA/7126/1995, also agrees that the basis of a council's actions may be considered if there is clear evidence on which to do so.
"Not otherwise available"
The position under Pt III of the 1948 Act is different. There it seems to me that if Mrs Steane was at the relevant time a person who by reason of age was in need of care and attention which was not otherwise available to her then the authority could have made arrangements for her accommodation under s 26(1) of the 1948 Act so long as they provided for the making of payments by them to the voluntary organisation. They clearly had power to arrange the accommodation and to bear part or all of the cost. But since Mrs Steane was living at Elmdon and cared for there under the arrangements with Islecare it seems to me that she was not a person who was in need of care and attention not otherwise available to her so long as she remained there. Accordingly it seems to me that since she did not fall within the category of persons described in s 21(1)(a) of the 1948 Act as being in need of care and attention the local authority do not have statutory power under Pt III of that Act to provide for her accommodation the cost of which could be borne out of local authority funds.
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 s 22... Any other approach is incompatible with the language of the relevant statutory provisions.
8 Local authorities are under a legal duty under the NHS and Community Care
1990 [ section 47] to assess the care needs of anyone who, in the authority's view, may be in need of community care services. It is the Department's view that the law does not allow authorities to refuse to undertake an assessment of care needs for anyone on the grounds of the person's financial resources, eg because they have capital in excess of the capital limit for residential accommodation. Even if someone may be able to pay the full cost of any services, or make their own arrangements independently (but see paras 9 and 10), they should be advised about what type of care they require, and informed about what services are available.
9 The legislation regarding Part Ill residential accommodation provides for authorities to assess under section 21 of the National Assistance Act 1948 whether anyone requiring residential care services is 'in need of care and attention which is not otherwise available to them'. Once the LA has completed a financial assessment of a resident's resources and their capital is above £16,000, this means that the resident has to pay the full charge, and may be in a position to make their own arrangements. However, that does not exempt Social Services Department from its duty to make arrangements for those people who are themselves unable to make care arrangements and have no-one to make arrangements for them. Under the NHS and Community Care Act 1990 local authorities are required to provide information to the public. The Department's 1991 publication of Practice Guidance and Care Assessment identified that published information as the first stage of the care management process.
10 It is the Department's view that having capital in excess of the upper limit of £16,000 does not in itself constitute adequate access to alternative care and attention. Local authorities will wish to consider the position of those who have capital in excess of the upper limit of £16,000 and must satisfy themselves that the individual is able to make their own arrangements or has others who are willing and able to make arrangements for them, for appropriate care. Where there is a suitable advocate or representative (in most cases a close relative) it is the Department's view that local authorities should provide guidance and advice on the availability and appropriate level of services to meet the individual's needs. Where there is no identifiable advocate or representative to act on the individual's behalf it must be the responsibility of the LA to make the arrangements and to contract for the person's care.
I emphasise that this is a statement of the Department of Health view, published after the recent Act.
But that does not apply to this case, because it was not disputed that the claimant could, and for a large part of the time did, meet the full costs of the accommodation.
In my opinion the reference to paying "the whole cost" is to be read as meaning the payment of the charge fixed for residents in respect of their individual accommodation. If this is paid wholly by the resident, regulation 7(1)(c) ... does not apply. If it is paid wholly or partly by others including payment our of public or local funds, then the resident is required to satisfy the other provisions of regulation 7(1)(c).
The reference to "the whole cost" in that passage was to the proviso to regulation 7(1)(c) set out in regulation 7(3)(b). This disapplied paragraph (1)(c) where the "person himself pays the whole cost". This was why the adjudication officer now acting conceded that the paragraph did not apply in this case. In my view, the wording in paragraph 8(6)(b), namely, "the whole of the cost of the accommodation is met ... out of his own resources" is effectively the same as that in regulation 7(3)(b). The same interpretation should therefore be given to it, and the test of "directly" should not therefore be added.
A loan arrangement?
The transaction described in the letter ... was clearly that of a loan. It is not material that the actual word "loan" was not used in the letter, nor was it necessary to consider the powers of the Council to make such a loan.
The Commissioner therefore confirmed the decision of the tribunal.
The final period of claim
The claimant is not entitled to exemption from regulation 6 for the first 28 days in hospital under regulation 8(1) unless it is found that the claimant was entitled to attendance allowance until she entered hospital. The tribunal will need to consider this if it finds that attendance allowance was payable.
Direction to the new tribunal
24 November 1998