Spink, R (on the application of) v Wandsworth Borough Council

Under section 2 of the Chronically Sick and Disabled Persons Act 1970, a local authority must distinguish between identifying a disabled person’s needs, deciding whether it is necessary for the authority itself to make arrangements to meet them, and performing the resulting duty.

At the second stage, the authority may consider whether the needs can reasonably be met by a third party, including the parents of a disabled child. Parental resources are relevant but are not necessarily decisive. The authority must consider the child’s circumstances and may still have to intervene where the parents will not meet clearly identified needs. This approach is compatible with Convention rights.

The claimants were profoundly disabled children whose parents sought aids and adaptations to their home under section 2(1)(e) of the Chronically Sick and Disabled Persons Act 1970. The local authority accepted that the provision fell within section 2 but proposed investigating the parents’ financial resources before deciding whether it was necessary for the authority to make the arrangements.

The parents sought judicial review, contending that the authority could consider resources only after making arrangements and charging for them. The authority relied on the statutory structure, disabled facilities grant provisions and the reasoning in R v Gloucestershire County Council, ex parte Barry. The central issue was whether parental resources were a lawful factor in deciding whether provision by the authority was necessary.

1. The claim for judicial review was dismissed. The authority was legally entitled to have regard to the parents’ financial resources when deciding whether it was necessary for it to make arrangements under section 2 of the Chronically Sick and Disabled Persons Act 1970.

2. The section involves three stages: identifying the person’s needs; deciding whether it is necessary for the authority to make arrangements to meet them; and, if so, performing the resulting duty. The second stage requires a judgment by the authority. It does not depend solely on whether the needs are presently being met.

3. The authority may consider whether the needs can reasonably be met by another public authority or third party. If a disabled facilities grant is available, it may be reasonable to conclude that provision by the social services authority is unnecessary. The same principle may apply where parents have resources and are willing to make them available.

4. Parental resources are relevant but not determinative. Where parents have resources but are unwilling to use them, the authority must examine the overall circumstances, including whether it would be reasonable for the parents to apply those resources and whether the child would remain at risk without intervention. In an appropriate case, the authority may still be required to act.

5. The existence of a charging power under section 17 of the Health and Social Services and Social Security Adjudications Act 1983 does not confine consideration of resources to the charging stage. An authority may consider resources when deciding whether its prior duty under section 2 arises.

6. The relevant passages of Circular 10/90 or LAC(90)7 were inconsistent with the statutory scheme and were wrong insofar as they suggested that the authority’s duty arose irrespective of the resources available to the disabled person or the parent of a disabled child.

7. The construction was compatible with Articles 3 and 8 of the European Convention on Human Rights. The court left open the question whether, on particular facts, the child’s rights might require intervention despite sufficient parental resources.