Fay, R (on the application of) v Essex County Council

Where disability adaptations can probably be funded through a disability facilities grant, a local authority is not presently required to fund them under section 2 of the Chronically Sick and Disabled Persons Act 1970. The statutory duty arises only where making arrangements is necessary to meet the disabled person’s needs. The availability of another statutory funding route is therefore material to necessity. Where the case has been argued on an inaccurate common assumption about the availability of that route, the court should avoid determining disputed questions of statutory construction or reasonableness on that incomplete basis.

The claimant, who had multiple sclerosis and required adaptations to his home, challenged Essex County Council’s refusal to provide or fund them under section 2 of the Chronically Sick and Disabled Persons Act 1970. The property belonged to his estranged wife, who lived there but was not willing to disclose her means or contribute to the works. The parties proceeded on the assumption that a disability facilities grant under the Housing Grants Construction and Regeneration Act 1996 and Regulations was unavailable. After the hearing, Chelmsford Borough Council indicated that the wife could apply and that her means could be disregarded because the claimant and his wife were not members of the same household. The central issue became whether the adaptations were presently necessary for Essex County Council to fund.

1. Present necessity. The adaptations could only be carried out with the wife’s permission because she owned the property. In those circumstances, there was no substantive difference between her applying for a disability facilities grant and consenting to the works being carried out by Essex County Council under a statutory duty. Given Chelmsford Borough Council’s position that a grant was likely to be available without taking the wife’s means into account, it could not presently be said that Essex County Council had to fund the adaptations in order to meet the claimant’s needs. The duty under section 2 of the Chronically Sick and Disabled Persons Act 1970 had therefore not arisen.
2. Effect on the pleaded issues. The parties had adopted an incorrect common position about the availability of a grant. That error affected both the Council’s decision-making and the arguments presented to the court. The court therefore declined to decide the argued questions concerning the construction and application of section 2 or the reasonableness of the Council’s decision on the information then available.
3. Further point. It was arguable that the claimant’s wife had herself availed herself of services under section 2 because the adaptations would be made to her house, so that costs might be recoverable from her under section 17 of the Health and Social Services and Social Adjudications Act 1983. That point had not been argued and was not decided.
4. The judge reserved submissions on relief and indicated that the possible courses were dismissal or adjournment to allow amendment in light of subsequent events and a further Council decision.

Not stated in the judgment.