Local authorities are creatures of statute and therefore may only carry out those functions that they are statutorily empowered to carry out.
With regard to the provision of adult social care, the functions of local authorities can be classified into duties, under which the local authority is obliged to provide the relevant service, and powers under which the local authority is permitted to provide the relevant service but does not have an obligation to do so.
In its recent judgment in R (on the application of GS) v London Borough of Camden, the High Court considered the scope of local authorities' general power of competence. This is the discretionary power under section 1 of the Localism Act 2011 which provides that, subject to certain limitations, a local authority is able to do anything that an individual generally may do.
In considering the scope of the power, the court concluded that the general power is, in certain cases - and on this occasion by virtue of the Human Rights Act 1998 - capable of being 'converted into a duty' on the local authority to provide a service.
Background
The brief facts of the case are that GS (an EEA national) requested the London Borough of Camden (Camden) to provide her with accommodation on the basis that she had a need for care and support which Camden was required to provide to her under the Care Act 2014.
GS suffered from physical and mental health problems, and she claimed that the benefits income she received (the Personal Independence Payment - the only benefit to which she was entitled) was insufficient for her to secure accommodation. Accommodation, she argued, was a need for care and support, and accordingly Camden was required to provide it under the Care Act 2014.
Camden assessed GS' needs, initially under the National Assistance Act 1948 and again (in October 2015) under the newly-commenced Care Act 2014 (the successor to National Assistance Act 1948). It ultimately concluded that she did not have any need for care and support within the meaning of the latter.
In challenging this decision, GS argued that Camden:
- had made errors in the assessment and had therefore got the law wrong when assessing her needs and determining that she did not have an eligible need for care and support;
- had failed to provide advice and information as required under section 24 of the Care Act; and
- should, in any event, have exercised either its specific power under the Care Act 2014 or its general power of competence under the Localism Act 2011 to provide accommodation, since not to do so breached her rights under the European Convention of Human Rights (the Convention).
Is need for accommodation alone a need for care and support?
The first question the court considered was whether a need for accommodation alone amounts to a requirement for 'care and support' pursuant to the Care Act.
In this context, the court tested whether case law (M v Slough BC [2008] UKHL 52 and R (SL) v Westminster CC [2013] UKSC 27) decided under the National Assistance Act 1948 applied in respect of this case, given that the Act referred to 'care and assistance' while its successor, the Care Act 2014, referred to 'care and support'.
It concluded that the case law did apply (nothing turned on the change) and confirmed that a need for accommodation alone was not a need for 'care and support'. This was on the basis that the provision of care and support does not encompass a general power to provide housing (the relevant powers in this area are found in, and subject to, other parts of the local authority statutory framework).
Care and support means looking after, and involves doing something which the person cannot or should not be expected to do for themselves. None of the outcomes specified in the 'eligibility criteria' supported accommodation as being a need.
General power of competence
GS had argued that, even if Camden did not have a statutory duty to provide accommodation because she did not meet the eligibility criteria, it nonetheless had a general power to do so under the Localism Act 2011 and should therefore provide accommodation to her under that power. The court's treatment of this argument has potentially wider reaching implications.
Two questions arose in this respect:
- whether the general power of competence was applicable in the circumstances of the case; and
- if so, whether the power was converted into a duty such that it had to be exercised in order to avoid a breach of GS' rights under the Convention.
Was the general power of competence applicable?
The general power of competence in section 1 of the Localism Act 2011 is subject to some limitations. Potentially relevant to this case were the limitations that the general power does not enable Camden to do something which it is otherwise prevented from doing:
- by a statutory provision in effect prior to the general power of competence coming into force (a "pre-commencement limitation");
- by a statutory provision that comes into effect after the general power is in force but only if that latter statutory provision is expressed to apply to the general power - whether specifically, or because it applies to all of Camden's powers, but with exceptions that do not include the general power, (a "post-commencement limitation").
The parties were generally agreed that the Care Act 2014 did not contain a post-commencement limitation.
However, Camden contended that the court should nonetheless follow certain principles which were applied in an earlier case in respect of a pre-commencement limitation.
It argued that, although there was no express post-commencement limitation, the restrictions imposed on the scope of Camden's powers under the Care Act 2014 applied equally to the scope of the general power of competence. This was on the basis that:
- the Care Act sets out the statutory scheme for meeting GS' care and support needs;
- the statutory scheme excluded GS from being provided with the social care services sought;
- the Localism Act could not be used to avoid the application of the provisions in the Care Act; and
- the general power of competence did not therefore apply in the circumstances of the case.
The court disagreed.
It noted that the difference between the pre-commencement limitation and the post-commencement limitation is that Parliament must have intended that any post-commencement limitation on the general power of competence would be specifically stated.
The Care Act 2014 had come into force after the general power of competence and did not expressly include any prohibition, restriction, or limitation that applied to the general power of competence.
Had Parliament intended that the general power of competence could not be used to provide care and support services which were excluded under the Care Act 2014, it would have expressly provided for that limitation in the latter Act. That Parliament had not done so meant that Camden was wrong to say that the Care Act provided a comprehensive statutory scheme under which it was prevented from exercising the general power of competence for the purpose of providing the social care services sought by GS. The general power of competence was available to Camden.
Turning the power into a duty
Having decided that the general power of competence was available, the court went on to consider whether the power had been 'converted into a duty' and whether it was a matter of obligation to exercise that general power in order to avoid a breach of GS' rights under the Convention.
In this regard, because Camden considered that it had no power to provide the services sought by GS it had not, when making its original decision, considered the question of whether there would be any potential breaches of GS' Convention rights. Before the court Camden accepted that, if its failure to act caused a breach of the Convention rights, then it would have to act. However, it submitted that its failure to act did not have that effect because GS' income was sufficient to avoid any such breaches.
Taking into consideration the entirety of GS' circumstances (including her potential social isolation, physical disabilities, pain, mental health condition and physical difficulties), the court concluded that if GS became homeless there would be a breach of Article 3 of the Convention (that is, the homelessness would result in serious suffering and be inhuman and degrading). It also concluded that GS would become homeless because the income she received was, contrary to Camden's submissions, insufficient to fund available and suitable accommodation.
The court concluded, therefore, that in the circumstances of the case, the general power of competence had effectively been converted into a duty. That is, Camden had a duty to act to the extent it was necessary to avoid a breach of GS' Convention rights and had the capacity to act by way of exercising the general power of competence.
Camden's decision not to exercise the general power was therefore unlawful.
Commentary
The judgment of the court serves as an important reminder to local authorities that a seemingly discretionary power may in certain circumstances, particularly where Convention rights could be in play, be a power that must be exercised.
In this respect, the decision will have particular significance on the role and responsibilities of local authorities in providing assistance to persons that would not otherwise be entitled to assistance under other specific statutory schemes such as the Care Act or the Housing Acts.
It also highlights the need for local authorities to consider all of the powers that are available to them when making decisions and reaching conclusions about the scope and extent of their functions.
To date, most local authorities will have considered the general power of competence broadly helpful because it provides the legal basis to do those things that they want to do and could not otherwise have done.
Going forward, this needs to be balanced by an understanding that it may also provide the legal basis for them to do things that they would otherwise not have wanted to do or considered doing. In accordance with the judgment in GS, the general power of competence may therefore prove to be a double-edged sword.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
