Law Centre (NI) Legal Information Briefing

Law Centre (NI) Legal Information Briefing - March 2017
Meeting need – part 2
Duty to meet needs in time of
budget cuts
Law Centre (NI)
At a glance
This briefing discusses when budgets can/cannot be taken into consideration in assessing
duties to meet social care need. As we navigate through difficult funding times, it will help
trust staff and service users understand their legal position.
The briefing revisits a case taken by Law Centre (NI) in 2010 – In the Matter of an Application
by LW, acting by her mother JB. The case gave the High Court in Northern Ireland an
opportunity to analyse the duties of health and social care trusts to meet need.
It is aimed at:
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health and social care professionals required to assess an adult’s eligibility to access a
domiciliary care service;
adults with domiciliary care needs and their carers;
advisers.
Law Centre (NI)
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promotes social justice and provides specialist legal services to advice
organisations and disadvantaged individuals
in five areas of law: social security, community care, mental health, employment,
trafficking and asylum
through advice, casework, training, information and policy services
Our advice line
Monday to Friday: 9024 4401
© Law Centre (NI) 2017
Law Centre (NI) Legal Information Briefing
Duty to meet needs in time of budget cuts
Introduction
This briefing examines a case taken by Law Centre (NI) in 2010 – ‘In the Matter of an
Application by LW, acting by her mother JB, for Judicial Review [2010]’1.
The case gave the High Court in Northern Ireland an opportunity to analyse the duties of
health and social care trusts to meet social care need.
As we navigate through difficult funding times, revisiting the Court’s decision will help trust
staff and service users understand their legal position.
1. Case summary{tc "Case summary"}
LW, a 36 year old woman, was the victim of serious traumatic brain injuries and quadriplegia
sustained as a result of a road traffic accident 20 years earlier. The ground for the judicial
review was that the trust had acted unlawfully in:
 failing to provide adequate and suitable domiciliary care services in LW’s home setting;
and
 failing to provide her with assessed residential care provision.
The argument relied on breaches framed under section 2 of the Chronically Sick and
Disabled Persons Act (NI) 1978 and under Art 15 of the Health and Personal Social Services
(NI) Order 1972.
Mr Justice McCloskey found that the trust had acted unlawfully in its continuing failure to
meet LW’s needs.
This case was a significant addition to the caselaw in the community care field. It was not
appealed.
2. Legislation{tc "Legislation"}
The principal statutes in the field of community care are:
 The Chronically Sick and Disabled Persons (NI) Act 1978 (the 1978 Act)
 The Health and Personal Social Services (NI) Order 1972 (the 1972 Order)
 The Health and Social Care (Reform) Act (NI) 2009 (the 2009 Act)
1. The case citation is [2010] NIQB 62. You can find it on: www.bailii.org/nie/cases/NIHC/QB/2010/62.html
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Although each of the above statutes is freestanding, Mr Justice McCloskey emphasised that
the passing of the 1978 Act was designed to ‘single out for special, additional treatment and
attention’ people in the community who are chronically sick and disabled. The use of the
word ‘further’ in the longer title of the 1978 Act indicates that this Act was intended to
make provision for the chronically sick and disabled in addition to provision already made for
them in the 1972 Order. He also noted that trusts have a legal duty to ‘proactively’ identify
all individuals who are chronically sick and disabled and to ascertain the need for making
arrangements to promote the social welfare of each of them.
2.1 Duty under section 2 of the 1978 Act{tc "Duty under section 2 of
the 1978 Act"}
The trust had assessed LW as needing a high degree of domiciliary care with assistance with
personal hygiene, bathing, dressings and other basic daily tasks including close supervision
when eating. Her needs were such that specially trained carers were necessary. The
suitability and availability of such carers had been persistently problematic.
In addressing whether the provision for her needs fell within the services listed in section 2
of the 1978 Act, the judge held that her complaint clearly fell within the scope of section 2
(a) –‘the provision of practical assistance for that person in his home’.
In considering whether there had been a breach of the trust’s duty to LW, the judge referred
to the House of Lords judgment in R v Gloucester County Council ex parte Barry. The
decision, in favour of the county council, centred on section 2 of the Chronically Sick and
Disabled Persons Act 1970 (the English equivalent to our Chronically Sick and Disabled
Persons (NI) Act 1978). The Lords found that, in respect of section 2 of the 1970 Act, a local
authority can take into account resources when assessing need. It can also do so when
deciding whether it is necessary to make arrangements to meet those needs under the
statute. The judgement in Barry saw the assessment of need for services as being a process
containing three separate stages.
As in the Barry case, Mr Justice McCloskey in the LW judgement identifies three separate
though inter-related exercises contemplated by Section 2 of the 1978 Act. These can be
described as:
Stage one – the diagnostic stage where an assessment of the individual’s needs is carried
out;
Stage two – the prescription/determination stage - what measures an authority considers
necessary to meet the individual’s needs by reference to the table of services and facilities in
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paragraphs (a) – (h) of section 2 such as the provision of, practical assistance in the home,
meals and works of adaptation to the home;
Stage three – the provision stage – what services an authority must put in place to meet the
individual’s needs.
The duty to meet need{tc "The duty to meet need"}
During the first two stages, a discretion may arise due to what the judge describes as
‘material considerations’. An example of material considerations might be a situation
where a relative or friend decides to provide care services her/himself to meet a loved one’s
care needs without assistance from a trust. There will be no duty on the trust but merely a
discretion to make provision. When a trust enters stage three, a statutory duty to provide
arises. The duty is unequivocal and is owed to the individual.
A shortage of resources will not excuse a failure to perform that duty. The duty gives rise to
clear enforceable rights for the disabled person concerned.
It is important to note that family or friends are not legally responsible for providing care
services to a loved one and a trust should only consider such input if it is provided on a
voluntary basis.
Analysis{tc "Analysis"}
The judge considered that the persistent and extensive shortcomings in the home carer
services provided to LW were inadequate and inefficient. The need was there.
The trust was in breach of its statutory duty under section 2 of the Chronically Sick and
Disabled Persons (NI) Act 1978 because it had identified the need for domiciliary care and
had not done enough to meet the need.
2.2 Duty under Article 15 of the 1972 Order {tc "Duty under Article 15 of the
1972 Order "}
The judge found that the second aspect of the complaint, the trust’s failure to provide LW
with assessed residential care provision, did not fall under section 2 of the 1978 Act but did
fall within the remit of Article 15 of the 1972 Order.
Article 15 provides:
‘...The department... shall make available advice guidance and assistance to such extent as it
considers necessary and shall make such arrangements... as it considers suitable and
adequate.’
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In seeking to reach a conclusion, Mr Justice McCloskey made reference to the Northern
Ireland case of Re Hanna‘s Application (2003) NIQB 79 and to the Scottish case of McGregor
v South Lanarkshire Council (2000) Scot CS 317. The judgement in the former case had
allowed the trust in question to take resources into account in deciding ‘when’ to meet an
individual’s needs. The judgement in the latter case had decided that, once a local authority
has determined that an individual’s needs call for a particular provision, the authority is
obliged to make that provision and could not refuse to do so if it did not have the necessary
resources. It must be pointed out that, although the question of resources was referred to
and important comments on the issue were made by the judge, the trust did not raise a lack
of resources in the LW case.
The judge followed the approach in McGregor (which is analogous with the decision in the
Barry case referred to above). He saw the language of article 15 as investing the authority
with a ’discretion’ in making available advice, guidance and assistance and in making such
arrangements. He decided that, once a decision on what the authority considers ‘necessary
and suitable and adequate’ has been made the discretion in play is exhausted and a duty of
provision arises. He found that in making the assessment in each individual case the
authority can properly take into account factors such as available resources and the
demands on its budget. However, when the assessment has been made, that discretion is
supplanted by duty and resources cannot play a part.
In an earlier Northern Ireland case R v Judge the court, in considering whether the trust had
discharged its duty to the applicant, applied a test of ‘reasonableness’. Mr Justice
McCloskey found the trust to be in breach of its duty to provide LW with an appropriate
residential placement under Article 15. He noted that it had not provided convincing
evidence that it had made ‘reasonable efforts’ to discharge its duty to LW. Therefore,
whether or not a trust is actually in breach of its statutory duty under Article 15 may depend
on the efforts it has made to perform that duty. The judge did not make a specific ruling on
whether there was an absolute unqualified duty of provision or a duty to make reasonable
effort because the trust had not even met the lower standard. Therefore, if a trust could
show that it had made a reasonable and sustained effort to meet a service user’s needs
there may be no breach under Article 15.
Conclusion{tc "Conclusion"}
The LW judgement has set out that:
 Trusts can take into account budget factors when setting policy on care services and
when determining which individual care needs it is necessary for the trust to meet.
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 When the trust decides that it is necessary to meet a need under S.2 of the Chronically
Sick and Disabled Persons (NI) Act 1978, for example, practical assistance in the home,
provision of meals or help with travel, then there is a clear legal duty on the trust to meet
those needs regardless of budget constraints.
 When it is decided that someone needs other help, for example, residential
accommodation, then once that need is identified, the trust is under a duty to meet it. If
it does not manage to do so for a period because of budget constraints then, as a
minimum, it must make reasonable efforts to fulfil its duty and may have to go further to
meet that statutory obligation.
Note: An accompanying briefing, Meeting need part 1. Assessing Eligibility for Domiciliary
Care Services, revisits Regional Access Criteria for Domiciliary Care, a Circular issued in 2008, and
the implications of a relevant case taken by Law Centre (NI) in 2011, In the matter of an
Application by Kathleen McClean for Judicial Review.
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Independent Advice, Support and Mediation Service (Community Care)
The Law Centre's Independent Advice, Support and Mediation Service (Community
Care) runs a specialist advice line and representation service.
How we can help you
We provide advice and assistance to:
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adults who have needs due to physical or mental disability, ill health or age,
adults with sensory disabilities, and
adults whose needs arise because of their role as carer.
We can help in cases which raise issues concerning the legal responsibilities of health and
social care trusts and other public bodies in the provision of health and social care.
We also welcome calls from health and social care staff, other healthcare providers and
advisers.
Our advice line: 028 9024 4401, Monday to Friday, 9am to 1pm and 2pm to 5pm, out of
hours voicemail service available
We also run a regional advice clinic service, please contact us for further information.
We advise in all areas of community care, including:
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needs assessments
provision of services
direct payments
benefits and community care
grants for home improvements for people with disabilities
services for young adults transitioning from Children’s Services
financing residential and nursing home care
carer’s assessments
capacity and decision making in social care
human rights issues and social care
Representation service - We resolve the majority of cases through negotiation with HSC
Trusts and service providers.
Where necessary, we initiate judicial review proceedings in the High Court to clarify
interpretation of health and social services law and/ or to challenge decisions made by
public bodies or HSC Trusts. We can pursue appeals to the Court of Appeal and beyond
where necessary.
Training - We provide training for health and social care staff and for advisers working in
the field of community care. For more information on courses available,
visit: www.lawcentreni.org/training/training.html.
More information
Consult our website for more information on the service and on health and social care legal
issues: www.lawcentreni.org
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Duty to meet needs in time of budget cuts
Law Centre (NI) contact details
Central Office
124 Donegall Street
Belfast
BT1 2GY
Tel: 028 9024 4401
Fax: 028 9023 6340
Textphone: 028 9023 9938
Email: admin.belfast@lawcentreni.org
Western Area Office
9 Clarendon Street
Derry
BT48 7EP
Tel: 028 7126 2433
Fax: 028 7126 2343
Email: admin.derry@lawcentreni.org
Our website: www.lawcentreni.org
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Disclaimer
Although every effort is made to ensure the information in Law Centre publications is accurate, we
cannot be held liable for any inaccuracies and their consequences. The information should not be
treated as a complete and authoritative statement of the law.
Law Centre (NI) only operates within Northern Ireland and the information in this document is only
relevant to Northern Ireland law.
When reading Law Centre documents, please pay attention to their date of publication as legislation
may have changed since they were published.
© Law Centre (NI) 2017
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