Linking Assessed Needs to Resources

The issue of costs is a central consideration in the ability of Southwark council to meet the care needs of persons with a disability. The council spends about 10million pounds annually on the provision of home care to adults and the need to control the escalating

446 Green Paper: European Social Policy—Options for the Union, COM (93)555, at 48.

447 G. Quinn supra no. 42.

448 M. Powell, ‘Modernising the Welfare State’ in M. Powell(ed), Modernising the Welfare State (The Policy Press 2008) pp1-18.

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costs was the main reason why the council conducted a review of the eligibility criteria in October 2008.⁴⁴⁹ In the same vein, there is a wide-spread perception that the Work Capacity reassessment forms part of the Government’s spending reductions” and that the sole purpose of the exercise is to reduce benefit expenditure”.⁴⁵⁰

Several important cases have explored the extent to which a local authority's resources or lack of them may be taken into account in the provision of welfare services to persons with disabilities. These cases demonstrate the extent to which courts continue to steer an uncertain course between willingness to challenge the failures of local authorities on one hand and concerns to minimise the funding predicaments of these authorities on the other. However, while a range of extraneous factors such as the likelihood of flood gates being opened, reprehensible conduct on the part of authorities and context sensitivity have influenced their conclusions, it is not certain the extent to which equality concerns have been factored in to these decisions.

Probably the most important case in this respect is R v Gloucester County Council, ex parte Barry⁴⁵¹ ( where the House of Lords established for the first time the principle that a local authority could take in to account its resources in deciding whether or not to meet the needs of its residents with a disability. In this case, the laundry and cleaning services of the claimant who was elderly and had a disability had been withdrawn on grounds that the local authority did not have sufficient resources to meet his needs. Despite the apparent mandatory force of Section 2(1) CSDPA, the House of Lords concluded that the local authority could take its own resources into account, both in the primary assessment of needs and subsequently in deciding whether it was necessary to make arrangements to meet the needs of a person with a disability. The approach in the Gloucester case was recently

449 Consultation on access to adult social care in Southwark, June 30-September 26 2008 available at http://www.southwark.gov.uk/download/1741/consulation document.

450 There are over 2.5 million people on incapacity benefits and Employment and Support Allowance, constituting about 7% of the working age population in Britain with an annual cost to the taxpayer of around £13 billion. See generally The Role of Incapacity Benefit Reassessment in Helping Claimants into Employment - House of Commons, Work and Pensions Committee HC 1015, 26 July 2011. available at http://www.publications.parliament.uk/pa/cm201012/cmselect/cmworpen/1015/101502.htm.

451 R v Gloucester, ex parte Barry [1997] AC 584, [1998] 2 ALL ER 770.

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followed by the Supreme Court in the Elaine McDonald case⁴⁵² where it was held that, in making the appropriate assessment of the claimant’s needs under the social welfare legislation, the local authority was entitled to take into account, inter alia, it’s resources as a proportionate means of achieving a legitimate aim, namely the equitable allocation of limited care resources. The court also took in to account the Floodgate reasoning applied in the Gloucester case, pointing out that’….the cost of night-time care for Ms McDonald would be an ongoing liability in the amount of £22,000 a year, a figure which in theory would have to be available for all other clients in Ms McDonald's situation’.

The fact that resources could be central to the decision to meet the needs of persons with disabilities has been recognized by the ECtHR. In Nikky Sentges v the Netherlands,⁴⁵³ the Court observed that the margin of appreciation granted to member states in the application of Article 8 ECHR is wider when the issues involve an assessment of the priorities in the context of the allocation of limited State resources. The court further pointed out that, in view of their familiarity with the welfare demands of citizens as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than the judiciary. O'Reilly and others.

However, it will not be in all cases that an authority’s lack of resources will justify its failure to promote the fundamental rights of persons with disabilities. In R v East Sussex County Council, ex parte Tandy,⁴⁵⁴ the House of Lords unanimously interpreted section 298 of the Education Act 1993 as giving rise to an absolute mandatory obligation on the local authority to deliver home tuition services to a child with a disability who had been unable to attend school for seven years. In Autism-Europe v. France,⁴⁵⁵ the inadequate provision of resources was crucial in the finding by the Committee on the Implementation of the European Social Charter that France had failed to achieve sufficient progress in advancing the provision of education for persons with autism.

452 [2010] EWCA Civ 1109; [2011] UKSC 33(UKSC2011/0005).

453 Nikky v the Netherlands (8 July 2003) Application no. 27677/02.

454 R v East Sussex CC ex Parte A and B High Court (Admin) CO/4843/2001, 18 February 2003.

455 Complaint No. 13/2002, 4 November 2003.

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