R v. Gloucestershire County Council and Anr., ex parte Barry

Michael Barry was an 81-year-old man who suffered from a number of disabilities and lived alone within the Gloucestershire County Council (the Council). Barry was originally assessed as requiring a number of home care services, but after budgetary cuts the Council informed Barry that they would no longer be able to perform cleaning and laundry services for him.

Barry and others commenced judicial review proceedings and argued that the Parliament had imposed a duty on the Council to meet his needs and that lack of funds was an insufficient reason for not doing so. The Council argued that they were entitled to consider their overall financial resources in assessing the needs of the Respondents.

Section 2(1) of the Chronically Sick and Disabled Persons Act 1970 (the Act) provided that where a local authority is satisfied in the case of a disabled person within their area that it is necessary to make arrangements in order to meet the needs of that person, then the local authority is under a further duty to make those arrangements.

At first instance, the Divisional Court held that

1. The Council had acted unlawfully in withdrawing the services to Barry, “on the sole basis of having exhausted available resources,” ([1997] 2 All ER p. 13) without first reassessing his circumstances; and
2. That a local authority is however entitled to take their resources into account when assessing or reassessing needs and the necessity of meeting those needs.

The matter was appealed to the Court of Appeal and then the House of Lords.

The Respondent argued that if the Council was entitled to take its resources into account then it would no longer be under a duty, but merely possess a power. The Court, however, held that even if it could take its resources into account, the Council remained under a duty. The duty was to “carry out its functions under section 2(1) in a responsible fashion.” ([1997] 2 All ER p. 12)

In the Court’s opinion, once the Council was satisfied that it was necessary to meet the needs of an individual, the Act imposed a duty on the Council to make arrangements, with a correlative right to the individual to enforce this duty, i.e. to have assessed arrangements made. Resources were not relevant to the performance of this duty. Once the duty had arisen, a shortage of resources was not an excuse for non-performance.

However, the Court made it clear that the duty only arose once the Council was so satisfied. As such, the local authority was entitled to take into account its financial resources when determining the “needs” of a disabled person. The Court held that this stage of determining necessity and need should be distinguished from the content of the duty itself.

The Court held that whilst costs and resources were not essential to an examination of need, the legislation did not prevent their consideration. Section 2(1) of the Act was set amongst a scheme of legislation, in particular section 29 of the National Assistance Act, which made it proper for resources to be taken into account. If the Parliament had intended that resources should not be considered in the operation of s 2(1) then this would have been made clear. Instead, the legislation was silent on the matter.

In practice, the severity of a condition would be matched against the availability of resources to determine how much something was “needed”. That is, the “relative cost will be balanced against the relative benefit and the relative need for that benefit” ([1997] 2 All ER p. 12). Furthermore, the range of facilities listed in the legislation that could be arranged by the Council was so broad that it could not be said that Parliament intended that they all be provided regardless of cost.

The Court also stated that their decision avoided “the considerable practical difficulties which the County Council would otherwise face” if the resources of the Council could not be considered in determining need of a person ([1997] 2 All ER p. 18).

“The right given to the person by s 2(1) of the 1970 Act 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.” [1997] 2 All ER p. 16.

“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 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.” [1997] 2 All ER pp. 16-17.