Spink & Anor, R (on the application of) v London Borough of Wandsworth

A local authority assessing whether it is necessary to arrange services for a disabled child may consider alternative means of meeting the need, including whether parents with sufficient resources can reasonably be expected to provide them. It may seek information about parental means before deciding whether intervention is necessary. Parental resources are relevant but not automatically decisive; the authority must consider all the circumstances, including the reasonableness of expected parental expenditure and the child’s interests. For disabled children, the Chronically Sick and Disabled Persons Act 1970 operates through functions under Part III of the Children Act 1989. Services provided in that way may attract charges under section 29 of the Children Act. The effect of Convention rights in cases of serious parental neglect was left open.

Henry and Freddie Spink were severely disabled children cared for at home by their parents. The parents sought aids and adaptations to make the home safe and argued that the Council owed a duty to provide and fund them without considering the parents’ means. The Council sought financial information and contended that it might charge or recover costs.

Richards J in the Administrative Court held that the Council was entitled to take the parents’ financial resources into account, in a judgment reported at [2004] EWHC 2314. He did not decide the separate issue of recovery. The Court of Appeal considered both whether parental means affected the duty to provide services and whether the Council could recover expenditure.

Appeal dismissed. The Court of Appeal resolved both issues raised by the proceedings.

1. The court rejected the Council’s argument that section 2 of the Chronically Sick and Disabled Persons Act 1970, as extended by section 28A, required disabled children to be treated as if section 29 of the National Assistance Act 1948 still applied to them. The amendments made by the Children Act 1989 had expressly removed children from section 29 of the 1948 Act. The correct construction was that the section 2 obligations relating to disabled children were performed through functions under Part III of the Children Act, particularly section 17.
2. Services provided through that route were subject to the charging provisions in section 29 of the Children Act. In the circumstances of this case, any right to charge the parents could arise only in respect of services provided for Freddie, who was under sixteen.
3. The court endorsed Richards J’s reasoning on necessity. A local authority may consider whether a disabled child’s needs can be met by another source, including parents or relatives. It may reasonably expect parents who can afford necessary adaptations to provide them where no alternative source exists. The authority may therefore seek information about parental means and decline to be satisfied that its intervention is necessary until it is shown that, having regard to those means, it is not reasonable to expect the parents to provide the necessary assistance. Parental resources remain relevant rather than determinative, and the authority must assess the overall circumstances.
4. The court questioned whether the original wording of section 2, particularly paragraph (e), was capable of requiring funding for substantial home adaptations, but did not decide the point because the Children Act functions were accepted to be wider. It also declined to determine what duties might arise where parental neglect threatened rights under Articles 3 or 8 of the European Convention on Human Rights. The judgment was left standing on the facts presented, notwithstanding possible subsequent changes.

1. Court of Appeal (Civil Division) dismissed the appeal and held that parental means could be taken into account when assessing the necessity of services, while resolving the charging issue.
2. Administrative Court (Richards J) held in [2004] EWHC 2314 that the Council was entitled to consider the parents’ financial resources, but left the recovery issue unresolved.