Barry, R (on the Application of) v. Gloucestershire County Council & Anor

The House considered the meaning and operation of section 2(1) of the Chronically Sick and Disabled Persons Act 1970. The court analysed the statutory process as comprising three stages: (i) assessment of the individuals needs, (ii) a decision whether it is necessary to make arrangements to meet those needs, and (iii) a duty to make such arrangements where the authority is satisfied they are necessary. The majority held that while the duty to provide (stage (iii)) is absolute and cannot be negatived by lack of funds, the local authority may properly take its available resources into account when assessing needs and in framing eligibility criteria. The House therefore allowed the appellants appeal and declared that resources are a relevant consideration at the assessment stage. The decision confirmed that the authoritys exercise of judgment remains subject to public law review for Wednesbury unreasonableness.

Background and facts:

• Mr Michael Barry, an elderly disabled man living alone in Gloucestershire, received services organised under section 2(1) of the Chronically Sick and Disabled Persons Act 1970 (home care, meals-on-wheels and domestic help).
• In 1994 the county council informed him that, because of reduced central government funding, some services (cleaning and laundry) would be withdrawn. Mr Barry sought judicial review.

Procedural history:

• Divisional Court (6 June 1994): granted a declaration that the council acted unlawfully in withdrawing services without lawful reassessment; held resources could be taken into account in both assessment and provision.
• Court of Appeal ([1996] 4 All E.R. 421): by majority allowed Mr Barrys appeal and declared that a local authority is not entitled to take its resources into account when assessing or reassessing whether it is necessary to make arrangements under section 2(1).
• House of Lords ([1997] UKHL 58): allowed the councils appeal; the majority held that resources may be taken into account at the assessment stage.

Issues framed:

• Whether, when assessing a disabled person's needs under section 2(1) of the 1970 Act, a local authority may take its own financial resources into account.
• How section 2(1) should be read in the context of section 29 of the National Assistance Act 1948 and subsequent community care legislation (notably section 47 of the National Health Service and Community Care Act 1990).

Courts reasoning (concise):

• The majority (Lords Nicholls, Hoffmann and Clyde) emphasised that assessment of need requires workable, identifiable criteria (eligibility criteria) which local authorities must set; those criteria legitimately take account of cost and the effect of cost on the authoritys resources because severity of need must be balanced against what can reasonably be provided.
• Cost and resources are relevant to the formulation and application of eligibility criteria and to the assessment stage, though once the authority is satisfied that particular arrangements are necessary the duty to make them is absolute and not excused by lack of funds.
• The authoritys decision-making at the assessment stage remains subject to public law controls; Wednesbury unreasonableness may provide a remedy if the authority acts irrationally in setting or applying criteria.
• The minority (Lords Lloyd and Steyn) favoured a stricter, needs-led approach, viewing "needs" as to be assessed against contemporary standards without regard to the authoritys resources; they would have dismissed the appeal.

The Houses decision therefore reconciled a personal statutory right with practical administrative realities by permitting resource considerations at the assessment stage while preserving enforceable duties and judicial review.

Appeal allowed. By a majority the House held that, although the duty under section 2(1) to make arrangements once the authority is satisfied is absolute and cannot be excused for lack of funds, a local authority may take its available resources into account when assessing an individual disabled person's needs and in framing eligibility criteria. The authoritys decisions remain reviewable for reasonableness.

Divisional Court (6 June 1994) - declaration that services were withdrawn unlawfully without lawful reassessment; Court of Appeal [1996] 4 All E.R. 421 - allowed Mr Barry's appeal by majority; House of Lords [1997] UKHL 58 - allowed the appeal of Gloucestershire County Council and the Secretary of State.