10.10R v Islington LBC ex p McMillan (1997–8) 1 CCLR 7, QBD
Reduced care provision is only justifiable on the basis of a revised assessment (at least in the context of needs assessed as having been ‘eligible’)
Facts: local authorities had ceased to provide home care services, or substantially reduced provision, because their changed financial position had left them facing a deficit.
Judgment: the Divisional Court (McCowan LJ and Waller J) held that the authorities were entitled to take their financial situation in to account but, in these cases, had acted unlawfully by treating their reduced resources as the sole relevant factor and without re-assessing the needs of those concerned, weighing their needs against those of others; in addition, a shortage of resources could not rationally justify a decision that left an individual at severe physical risk:
For these reasons I for my part have concluded that a local authority are right to take account of resources both when assessing needs and when deciding whether it is necessary to make arrangements to meet those needs. I should stress, however, that there will, in my judgment, be situations where a reasonable authority could only conclude that some arrangements were necessary to meet the needs of a particular disabled person and in which they could not reasonably conclude that a lack of resources provided an answer. Certain persons would be at severe physical risk if they were unable to have some practical assistance in their homes. In those situations, I cannot conceive that an authority would be held to have acted reasonably if they used shortage of resources as a reason for not being satisfied that some arrangement should be made to meet those persons’ needs.
On any view section 2(1) is needs-led by reference to the particular needs of a particular disabled person. A balancing exercise must be carried out assessing the particular needs of that person in the context of the needs of others and the resources available, but if no reasonable authority could conclude other than that some practical help was necessary, that would have to be their decision.
Furthermore, once they have decided that it is necessary to make the arrangements, they are under an absolute duty to make them. It is a duty owed to a specific individual and not a target duty. No term is to be implied that the local authority are obliged to comply with the duty only if they have the revenue to do so. In fact, once under that duty, resources do not come into it.
It would certainly have been open to the Gloucestershire County Council to reassess the individual applicants as individuals, judging their current needs and taking into account all relevant factors including the resources now available and the competing needs of other disabled persons. What they were not entitled to do, but what in my judgment they in fact did, was not to re-assess at all but simply to cut the services they were providing because their resources in turn had been cut. This amounted to treating the cut in resources as the sole factor to be taken into account, and that was, in my judgment, unlawful. Moreover, I see no reason to deny the applicants a declaration to that effect.
Comment: see the cases about care home and other service closures: it can be lawful to reach a ‘macro’ budgetary decision on the basis that it is not irreversible, but is subject to the completion of individual assessments in due course that ensure that eligible needs and met.