The Queen (on the application of (1) A (2) B (by their litigation friend the Official Solicitor) (3) X (4) Y) v EAST SUSSEX COUNTY COUNCIL [2002] EWHC 2771 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 2771 (Admin)Case No Case No: CO/4843/2001Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
The Queen (on the application of (1) A (2) B (by their litigation friend the Official Solicitor) (3) X (4) Y)ClaimantsEAST SUSSEX COUNTY COUNCILDefendantTHE DISABILITY RIGHTS COMMISSIONInterested Party
Before
Mr Justice MunbyMiss Alison Foster QC (instructed by Mackintosh Duncan) for the claimants A and BMr Murray Hunt (instructed by Leigh Day & Co) for the claimants X and YMs Beverley Lang QC and Ms Jenni Richards (instructed by the Director of Legal and Community Services) for the defendantMr David Wolfe (instructed by Chris Benson) for the interested partyDate 17 December 2002
[1]Mr Justice Munby: Introduction A and B are sisters, born in 1976 and 1980, who are thus now 26 and 22 years old respectively. They both suffer from profound physical and learning disabilities and accordingly appear in the proceedings by their litigation friend the Official Solicitor. They have always lived in the family home, which has to an extent been specially adapted and equipped for them and where they are looked after on a full time basis by their mother, X, and their stepfather, Y.[2]East Sussex County Council ("ESCC") is the relevant local authority owing duties to A and B, in particular under section 29 of the National Assistance Act 1948, section 2 of the Chronically Sick and Disabled Persons Act 1970 and section 47 of the National Health Service and Community Care Act 1990.[3]Both A and B suffer from greatly impaired mobility. Even the simplest physical movement, for example, getting out of bed or getting into the bath, requires them to be moved and lifted by their carers. Central to all the disputes which have blighted this family's life for so many years now is a fundamental difference of view between X and Y, on the one side, and ESCC, on the other side, as to whether and to what extent this moving and lifting should be done manually, as X and Y would prefer, or, as ESCC would have it, using appropriate equipment. The litigation[4]Largely because of this acute difference of view, the care package provided by ESCC during the late 1990s came under stress. On 29 February 2000 proceedings for judicial review (CO/740/2000) were commenced by A, B, X and Y against ESCC in relation to what was alleged to be the on-going failure of ESCC properly to perform its statutory duties. Those proceedings were compromised by a consent order made on 21 July 2000.[5]Unhappily that did not resolve the continuing differences of view and on 29 November 2001 further proceedings for judicial review (CO/4843/2001) were commenced against ESCC. On this occasion the Disability Rights Commission ("the DRC") was added as an interested party. Permission was granted by Richards J on 20 December 2001. He directed that the matter was to be heard before a nominated judge of the Family Division.[6]On 19 February 2002 ESCC commenced proceedings under CPR Part 8 in the Family Division, seeking to invoke the court's inherent declaratory jurisdiction in relation to incapacitated adults: see AvA Health Authority [2002] EWHC 18 (Fam/Admin), [2002] Fam 213 and Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam) .[7]Both sets of proceedings came before me on 5 March 2002 when I gave directions, including directions that both matters were to be listed together, that all further applications were to be made either to me or to Wilson J (we being at that time the only judges who were both nominated judges of the Administrative Court and judges of the Family Division), and that the two matters were to be heard by Wilson J starting on 11 June 2002. In fact on 31 May 2002 (neither Wilson J nor I then being available) further directions were given by Richards J, the effect of which was to limit the hearing before Wilson J in June 2002 to the determination of certain specified issues. Wilson J heard the matter in accordance with Richards J's directions over four days from 11-14 June 2002. The elaborate order which he made on 14 June 2002 included directions for the further hearing of the remaining issues. In accordance with those directions the two matters came on for hearing before me on 29 October 2002.[8]All parties were agreed that I should first try two discrete issues: i) The first issue ("the user independent trust issue") is whether care staff may lawfully be provided to the family by ESCC by means of a vehicle known as a 'user independent trust'. This raises a short but important point of pure law. ii) The second issue ("the manual handling issue") concerns the legality of what is said to be ESCC's policy of not permitting care staff to lift A and B manually. This is a much more complicated issue, raising, on one view of the matter, difficult questions of law (by which I mean domestic law, human rights law and European Community law), of policy and of fact.[9]The trial of these two issues alone lasted six days. At the conclusion of the hearing on 11 November 2002 I reserved judgment, having made an order regulating, amongst other things, the interim arrangements that were to be put in place pending the handing down of my judgment and, thereafter, pending the further hearing which will almost certainly be necessary whatever my decision on the first two issues.[10]In the event it is convenient for me to give separate judgments on these two issues. This judgment is accordingly confined to the user independent trust issue. I will subsequently deliver judgment on the manual handling issue. The statutory setting[11]Section 29(1) of the National Assistance Act 1948 (as amended) provides that:
"A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged eighteen or over who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister."
[12]The relevant approvals and directions are those given by the Secretary of State on 17 March 1993 and contained in Appendix 2 to LAC(93)10. Paragraph 2(1) provides as follows:
"The Secretary of State hereby approves the making by local authorities of arrangements under section 29(1) of the Act for all persons to whom that subsection applies and directs local authorities to make arrangements under section 29(1) of the Act in relation to persons who are ordinarily resident in their area for all or any of the following purposes: (a) to provide a social work service and such advice and support as may be needed for people in their own homes or elsewhere; (b) to provide, whether at centres or elsewhere, facilities for social rehabilitation and adjustment to disability including assistance in overcoming limitations of mobility or communication; (c) to provide, whether at centres or elsewhere, facilities for occupational, social, cultural and recreational activities and, where appropriate, the making of payments to persons for work undertaken by them."
[13]Section 2(1) of the Chronically Sick and Disabled Persons Act 1970 provides in relevant part that:
"Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely – (a) the provision of practical assistance for that person in his home; … (e) the provision of assistance for that person in arranging for the carrying out of works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience; … then … it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29."
[14]Section 47 of the National Health Service and Community Care Act 1990 provides in relevant part that:
" … where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of such services, the authority – (a) shall carry out an assessment of his needs for those services; and (b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."
[15]Section 46(3)(a) defines "community care services" for this purpose as including services which a local authority may provide or arrange to be provided under section 29 of the 1948 Act.[16]Thus it can be seen that ESCC has the power under the 1948 Act and is under a duty pursuant to both the 1948 Act and the 1970 Act to "make arrangements" to provide A and B with services, facilities and support of the relevant kind.[17]So much for the general scheme of the legislation. The issue[18]Services under section 29 of the 1948 Act can be provided by the local authority itself, that is, by the local authority using its own employees and staff. In certain circumstances, as we will see, those services can also be supplied by other means. The issue in the present case is whether it is lawful, that is, whether it is intra vires, for a local authority to provide such services using a particular type of vehicle called a user independent trust.[19]Miss Alison Foster QC, on behalf of A and B, Mr Murray Hunt, on behalf of X and Y, and Mr David Wolfe, on behalf of the DRC, all submit that use of a user independent trust is intra vires a local authority. Ms Beverley Lang QC and Ms Jenni Richards, on behalf of ESCC, say that it is ultra vires.[20]I stress that the only issue I am asked to decide at this stage is the bald question of vires. Whether in the particular circumstances of this case it would be appropriate, if intra vires, for such a vehicle in fact to be used is a question for another day. User independent trusts[21]'User independent trust' is not, as I understand it, a term of art but merely a label conventionally used to describe the key component in a certain type of arrangement. The particular arrangement under consideration in the present case can be briefly described. It consists of two components.[22]The first – the user independent trust itself – is a company ("the Company"), registered under the Companies Acts 1985 and 1989, limited by guarantee and not having a share capital. The draft Articles of Association of the Company provide: i) by article 19 that there shall be not less than five members of the Board (called "Trustees"), being X and Y – both appointed for life pursuant to article 28 – A and B's advocate, a representative from East Sussex Disability Association and a representative from ESCC; ii) by article 2 that the members of the Company are the Trustees; iii) by article 23 that a meeting of the Board at which a quorum is present may exercise all the powers exercisable by the Board; iv) by article 34 that questions arising at a meeting of the Board shall be decided by majority, subject to the Chairman's casting vote; v) by article 35 that the quorum for the transaction of the business of the Board shall be three; and vi) by article 36 that the Board may act notwithstanding any vacancies.[23]The draft Memorandum of Association of the Company provides: i) by clause 3 that "The object for which the Company is established is for the sole purpose of providing, or arranging to be provided support, rehabilitation, recreational activities and care to [A] and [B]." ii) by clause 5 that "The income of the Company shall be applied solely towards the promotion of the objects as set forth in this Memorandum of Association and no part shall be paid or transferred directly or indirectly, by way of dividend, bonus or otherwise by way of profit, to members of the Company and no Trustee … shall be appointed to any office of the Company paid by salary or fees or receive any remuneration or other benefit in money or money's worth from the Company". iii) by clause 8 that "If the Company is wound up or dissolved and … there remains any money or property it shall not be paid to or distributed among the Members of the Company, but shall be given or transferred to the Statutory Authority responsible under Community Care Legislation to provide support, rehabilitation and care to [A] and [B]."[24]The other component is a 'Contract for the provision of support to [A] and [B]' ("the Contract") to be entered into by the Company and ESCC. The draft of the Contract is a complicated document. What is described as the basis of contract is set out in clause 2. Clause 2.1 provides that:
"This Agreement aims to enable as far as is possible flexible provision of care services to [A] and [B] to be arranged by [the Company]. These arrangements will in turn support [X] and [Y] in their role as carers."
[25]Clause 2.3 provides that: "This Agreement establishes responsibilities on the part of [ESCC] and [the Company], as set out in the attached Service Specification … as it relates to the individual care plans for [A] and [B]".[26]I need not refer to the individual care plans. The draft Service Specification provides, inter alia, that ESCC will pay to the Company the funding identified by ESCC's social services department to meet the agreed needs of A and B, as detailed in their individual care plans, and that the Company will ensure that all services purchased and arranged comply with the agreed care plans.[27]Personal Assistants (see the definitions in clause 1.1) are the persons employed by the Company, whether as employees or as contractors, to implement the arrangements relating to service provision set out in the Service Specification and the individual care plans. Clause 4.1, which is central to the arrangements, provides that:
"The [Company] will take responsibility for recruiting and selecting suitable Personal Assistants when needed."
[28]Clause 7 provides that ESCC will pay the Company: i) the annual sum of £71,964 in monthly instalments "to pay for the services required to meet the identified needs of [A] and [B], as set out in their individual care plans"; ii) an additional sum, up to a maximum of £150 per calendar month based on the expenditure actually incurred by the Company; and iii) the operational costs of the Company subject to an as yet unspecified maximum sum.[29]Clause 3.1, read in conjunction with clause 14, provides that the arrangements will continue subject to termination by either party by three month's written notice.[30]Thus the arrangements can be summarised as follows: i) No payments are made by ESCC either to A and B or to X and Y. All payments under the Contract are made to the Company – the user independent trust. ii) The Company is a legal entity quite distinct from both A and B and from X and Y: Salomon v Salomon & Co [1897] AC 22 . iii) X and Y do not control the Company. They do not have a majority of the votes on the Board and, since the Trustees act by majority, nor do they have a veto. iv) The Company is a non profit-making organisation. It can make no distribution to its members and any surplus on winding-up has to be repaid to ESCC. Thus this is not a trust that can be 'broken' by the family under the rule in Saunders v Vautier (1841) 4 Beav 115.[31]I should add that, very properly, there has been no suggestion that were these arrangements in fact to be put in place they would be anything other than as they appear. No question of sham arises. And given their absence of control it could not be said that the Company is simply the alter ego of X and Y. The Community Care (Direct Payments) Act 1996[32]Central to Ms Lang's submissions are i) the proposition that prior to the Community Care (Direct Payments) Act 1996 there was absent from the legislation any provision enabling local authorities to pay money to persons requiring services under section 29 of the 1948 Act so as to enable them to buy in the services themselves rather than merely accepting the services supplied in kind by the local authority itself; and ii) the need, as Ms Lang would have it, to bear in mind the statutory scheme for payment embodied in the Community Care (Direct Payments) Act 1996 and the limited ambit of that scheme.[33]Ms Lang points not merely to the absence of any express power both in the 1948 Act itself and in the Secretary of State's approvals and directions. She points also to section 29(6)(a) of the 1948 Act which provides, subject to exceptions that do not matter for present purposes, that: "Nothing in the foregoing provisions of this section shall authorise or require … the payment of money to persons to whom this section applies".[34]Moreover, as she correctly points out, Schedule 8 of the National Health Service Act 1977, paragraph 2(1) of which permits a local authority, with the Secretary of State's approval, to "make arrangements for the purpose of the prevention of illness and for the care of persons suffering from illness and for the after-care of persons who have been so suffering", is careful also to provide in paragraph 2(2) that, subject to exceptions which do not matter for present purposes, "no arrangements under this paragraph shall provide for the payment of money to persons for whose benefit they are made".[35]That is all true enough. But it has to be borne in mind that I am not concerned in this case with any proposal for the payment of money by ESCC direct either to A and B or even to X and Y. All payments by ESCC will be to the Company – to the user independent trust.[36]Section 1(1) of the 1996 Act (as amended) provides that:
"Where – (a) an authority have decided under section 47 of the National Health Service and Community Care Act 1990 … that the needs of a person call for the provision of any community care services … and (b) in the case of a person – (i) whose needs the local authority have decided call for the provision of community care services, he is of a description which is specified for the purposes of this subsection by regulations made by the Secretary of State, or (ii) … the authority may, if the person consents, make to him, in respect of his securing the provision of any of the services for which they have decided his needs call or, as the case may be, they have decided to provide or arrange to provide, a payment of such amount as … they think fit."
[37]Section 1(9) provides that:
"In this section "community care services" has the same meaning as in section 46 of the National Health Service and Community Care Act 1990."
[38]The relevant regulations are The Community Care (Direct Payment) Regulations 1997, SI 1997 No 734. Regulation 2(1) provides that:
"Subject to paragraph (2), a person – (a) to whom section 29 of the National Assistance Act 1948 applies, and (b) who appears to the authority to be capable of managing a direct payment by himself or with assistance, is specified for the purposes of section 1(1)(b) of the Act."
[39]Regulation 2(2) provides that paragraph (1) does "not apply" to certain persons, included amongst whom, for example, are (paragraph (a)) persons aged 65 or over and (paragraph (d)) persons placed under guardianship in pursuance of sections 7 or 37 of the Mental Health Act 1983.[40]It is common ground that the 1996 Act cannot apply in the present case because A and B lack the capacity to give the "consent" required by section 1(1) of the Act. They are manifestly not capable, even with assistance, of managing a direct payment to themselves as required by regulation 2(1)(b).[41]So, says Ms Lang, and I entirely agree, neither the 1948 Act nor the 1996 Act contains any provision enabling ESCC to make direct payments either to A and B or to X and Y. Nor, however, in my judgment do they contain, either expressly or by implication, any prohibition of the making of payments to a user independent trust. Section 30 of the National Assistance Act 1948[42]How then is it said that the use in this context of a user independent trust is lawful?[43]The starting point for Miss Foster, Mr Hunt and Mr Wolfe is that they are not, they say, seeking to promote a scheme for the payment of money direct by ESCC either to A and B or to X and Y, for, as I have said, all payments by ESCC will be to the Company. They make the general point that payment to a user independent trust is not a payment to the end-user but rather a payment to an independent agency. I agree. Thus, they say, section 29(6)(a) of the 1948 Act is quite beside the point. So also, they say, it is quite beside the point that a direct payment could not be made to A and B under the 1996 Act. I agree. On the contrary, payment to a user independent trust is on the face of it, they say, within the scope of the statutory power in section 29(1) of the 1948 Act to "make arrangements" for the provision of the relevant services. I agree.[44]The first statutory provision prayed in aid is section 30(1) of the 1948 Act. As amended by the 1990 Act this provides that:
"A local authority may, in accordance with arrangements made under section 29 of this Act, employ as their agent for the purposes of that section any voluntary organisation or any person carrying on, professionally or by way of trade or business, activities which consist of or include the provision of services for any of the persons to whom section 29 above applies, being an organisation or person appearing to the authority to be capable of providing the service to which the arrangements apply."
[45]Voluntary organisation is defined for this purpose in section 64(1) as meaning:
"a body the activities of which are carried on otherwise than for profit, but does not include any public or local authority."
[46]Prior to its amendment in 1990 section 30(1) provided that:
"A local authority may, in accordance with arrangements made under section 29 of this Act, employ as their agent for the purposes of that section any voluntary organisation or other person, being an organisation or person appearing to the authority to be capable of providing the service to which the arrangements apply."
[47]The purpose of the amendment was explained at the time by Baroness Hooper, the Parliamentary Under-Secretary of State for the Department of Health, as follows ( Hansard, House of Lords, Vol 520, col 439 ):
"Our intention always was that local authorities should only make arrangements for the provision of services for payment with persons professionally engaged in providing those services or otherwise providing them by way of business or trade. It was never our intention that local authorities should be able to pay people who would have provided these services on a non-commercial basis and the amendments which we have introduced into the Bill make this clear. We feel that the amendments are needed to protect local authorities from pressure to use their powers to make arrangements with private providers in ways in which the Government never intended. The amendments are therefore necessary to clarify Section 30 of the National Assistance Act 1948 and Section 45 of the National Health Services and Public Health Act 1968."
[48]This legislative history suggests that the inserted words "carrying on, professionally or by way of trade or business, activities which consist of or include the provision of services for any of the persons to whom section 29 above applies" govern only the immediately preceding words "any person" and not the earlier words "voluntary organisation", a view reinforced by the repeated use of the word "any" in the phrase "any voluntary organisation and any person".[49]Accordingly, the key question is whether a user independent trust – or, to be more precise, the user independent trust proposed in this case, the Company – is a "voluntary organisation" within the meaning of section 64(1). In my judgment it quite plainly is. The Company is not a public or local authority. Its activities are carried on otherwise than for profit. It is accordingly a voluntary organisation.[50]I should add that I would have come to precisely the same conclusion if, contrary to my reading of section 30(1), the words "voluntary organisation" are to be read as also being governed by the words "carrying on, professionally or by way of trade or business, activities which consist of or include the provision of services for any of the persons to whom section 29 above applies". Those words, in my judgment, are entirely apt to describe the Company and its activities, and this notwithstanding that it is in the business of providing such services for only two identified individuals, that is for A and B.[51]It follows, in my judgment, that the use of a user independent trust in this context is intra vires a local authority. It is within the powers expressly conferred on a local authority by section 30(1).[52]In this connection I should also refer to the approvals and directions contained in LAC(93)10. Paragraph 3 provides that:
"The Secretary of State hereby approves the making by local authorities of arrangements under section 29(1) of the Act, where appropriate, with another local authority for the provision of any of the services referred to in these Approvals and Directions."
[53]Paragraph 4 provides that:
"For the avoidance of doubt, these Approvals and Directions are without prejudice to the powers conferred on local authorities by section 30(1) of the Act … "
[54]Thus the 1948 Act, read in conjunction with the 1996 Act, contemplates that section 29 services can be provided or paid for by a local authority in four different ways: i) by the local authority itself providing the services: section 29(1); ii) by the local authority arranging for another local authority to provide the services: paragraph 3; iii) by the local authority employing a suitably qualified voluntary organisation or individual to act as their agent: section 30(1); or iv) by the local authority making a direct payment to the end-user under the 1996 Act.[55]The use of a user independent trust is in my judgment, as I have said, intra vires as falling within (iii). It makes no difference that in the circumstances of the particular case it might not be lawful to make a direct payment in accordance with (iv). Indeed, that is the very type of case, it might be thought, in which the use of a user independent trust might be appropriate.[56]There is no conflict between section 29(6)(a) and section 30(1), or between section 30(1) and the 1996 Act, for there is nothing in section 30(1) to authorise a direct payment to the end-user. Section 30(1) authorises the use of an "agent". The Company is an agent of the appropriate type. There is nothing in section 30(1) to preclude a local authority employing an agent – in the present case the Company – on terms such as those embodied in the Contract. In my judgment the payment of monies by ESCC to the Company in accordance with the Contract plainly falls within the powers conferred on ESCC by section 30(1). It is thus intra vires ESCC. Section 111 of the Local Government Act 1972[57]I turn now to the alternative ways in which the case is put.[58]Counsel next point to section 111(1) of the Local Government Act 1972 which provides that:
"Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do anything (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."
[59]There is, as is well known, a large mass of authority on this. I do not propose to add to the learning. Ms Lang referred me to cases such as In re Westminster City Council [1986] AC 668, R v Kensington & Chelsea Royal Borough Council ex p Brandt (1996) 28 HLR 538, Credit Suisse v Allerdale Borough Council [1997] QB 306, Credit Suisse v Waltham Forest London Borough Council [1997] QB 362 and R v Liverpool City Council ex p Baby Products Association [2000] LGR 171 as authority for, or illustrations of, the proposition that where Parliament has made detailed provision as to how certain statutory powers are to be carried out, there is no scope for implying the existence of wholly additional powers outside the statutory code by reference to section 111. That principle, of course, I wholly accept.[60]On the other side I was referred to R v Greater Manchester Police Authority and ors ex p Century Motors (Farnworth) Ltd [1998] EWCA Civ 527, an unreported decision of the Court of Appeal on 24 March 1998. That case involved the Removal and Disposal of Vehicle Regulations 1986, regulation 4 of which provided that if a vehicle has broken down on a road or has been abandoned without lawful authority or has been permitted to remain at rest on a road where it appears to have been abandoned, a constable: "may remove or arrange for the removal of the vehicle, and, in the case of a vehicle which is on a road, he may remove it or arrange for its removal from that road".[61]The question was whether section 111 authorised the Police Authority to enter into a contract with a commercial company, AADL, to provide a comprehensive system for dealing with abandoned vehicles including their recovery, storage and disposal under its control and supervision. The Court of Appeal held that it did. Beldam LJ said:
"In my view the Authority … did have power to enter into an agreement of the kind made with AADL. It was an agreement which was calculated to facilitate or was conducive or incidental to the discharge of the Authority's functions in dealing with the removal of broken down, abandoned or stolen motor vehicles under the Removal and Disposal of Vehicles Regulations 1986. In particular it would assist a constable in the exercise of his power under reg. 4 by enabling him to arrange for the removal of vehicles. Such an agreement was, in my view, well within the powers of the Authority … under s. 111 … of the Local Government Act 1972"
(emphasis added).[62]The factual and legal context in which the point arose is, of course, a long way away from the present case but the significance for present purposes of the court's approach is apparent.[63]In my judgment payment to the Company in accordance with the Contract is plainly calculated to facilitate, and is plainly conducive and incidental to, the discharge by a local authority of its functions under the 1948 and 1970 Acts. Such a payment is not expressly prohibited by any other legislation nor is it, in my judgment, otherwise inconsistent with the relevant statutory framework. In this connection it is not unimportant to note that there is lacking here, as it seems to me, any statute or group of statutes which can be said to make complete and comprehensive provision for such matters. There is not here the "detailed and carefully-crafted code" to which Lord Bingham of Cornhill CJ referred in R v Liverpool City Council ex p Baby Products Association [2000] LGR 171 at 177b. There is here no comprehensive regime regulating payments, whether direct to end-users or to intermediaries. Indeed, as Miss Foster pointed out, the 1996 Act does not even purport to deal with the incapacitated at all, nor does it suggest a regime of payments that impliedly ousts a power to utilise a user independent trust (or, indeed, any other kind of vehicle involving an intermediary). For ESCC to utilise a user independent trust such as the Company would not, in my judgment, be to circumvent the provisions of the legislation. A user independent trust is not, in my judgment, an impermissible "escape route from the statutory controls" – to adopt a phrase used in Credit Suisse v Allerdale at p 332G.[64]Accordingly, even in the absence of the express power which in my judgment is to be found in section 30(1) of the 1948 Act, it would, by virtue of section 111 of the 1972 Act, be intra vires ESCC to make use of a user independent trust: it would, in my judgment, be intra vires ESCC to make payment of monies to the Company in accordance with the Contract. Section 2 of the Local Government Act 2000[65]Section 2 of the Local Government Act 2000 provides in relevant part:
"(1) Every local authority are to have power to do anything which they consider is likely to achieve any one or more of the following objects— (a) the promotion or improvement of the economic well-being of their area, (b) the promotion or improvement of the social well-being of their area, and (c) the promotion or improvement of the environmental well-being of their area. (2) The power under subsection (1) may be exercised in relation to or for the benefit of— (a) the whole or any part of a local authority's area, or (b) all or any persons resident or present in a local authority's area. (3) In determining whether or how to exercise the power under subsection (1), a local authority must have regard to their strategy under section 4. (4) The power under subsection (1) includes power for a local authority to— (a) incur expenditure, (b) give financial assistance to any person, (c) enter into arrangements or agreements with any person, (d) co-operate with, or facilitate or co-ordinate the activities of, any person, (e) exercise on behalf of any person any functions of that person, and (f) provide staff, goods, services or accommodation to any person."
[66]Section 3(1) provides that:
"The power under section 2(1) does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation on their powers which is contained in any enactment (whenever passed or made)."
[67]The leading authority on section 2 is the decision of Elias J in The Queen on the application of J v Enfield London Borough Council (Secretary of State for Health as intervener) [2002] EWHC 432 (Admin) , [2002] 2 FLR 1.[68]Faced with the decision of the Court of Appeal in The Queen on the application of A v Lambeth London Borough Council [2001] EWCA Civ 1624 , [2002] 1 FLR 353 , Elias J proceeded on the basis that section 17 of the Children Act 1989 conferred no power on a local authority to provide either accommodation or financial assistance to enable accommodation to be acquired for a child in need: see at paras [41], [45]. The question was whether the local authority nonetheless had power to do so pursuant to the 2000 Act. Elias J held that it had power to provide financial assistance.[69]The key part of Elias J's reasoning is to be found at paras [53], [57]:
"[53] The power conferred by s 2 is in my judgment capable of extending to the grant of financial assistance for acquiring accommodation. The question is whether there is any 'prohibition, restriction or limitation' on that power which is contained in any other enactment. Initially, Mr Sales submitted that there was no such restriction even in relation to the provision of accommodation itself. However, he has resiled from that position and has recognised that there are certain statutory provisions which are to be found both in the Housing Act 1996 and in the Immigration and Asylum Act 1999 which would constitute limitations on the power on the authority to grant accommodation to the claimant because she is an overstayer: see the Housing Act 1996, ss 159-161 and IAA, s 118. The former provide that a local authority shall allocate housing accommodation only to those who are qualified to be allocated it; and the latter prevents accommodation being provided to those subject to immigration control save in special circumstances not applicable here. In addition, in my view s 185 of the Housing Act 1996 falls into the same category … However, Mr Sales contends that there is no 'prohibition, restriction or limitation' on the power of an authority to give financial assistance for the purpose of acquiring accommodation, either in these provisions or any other. He draws a distinction between, on the one hand, a case where a statute merely confers a power in a specific field so that any limitation arises simply because the power cannot be exercised outside the specified field; and, on the other, a case where the legislation in terms imposes an express restriction or limitation on the exercise of the power. Even in the latter situation, he says that it will be necessary in each case to scrutinise the legislation carefully to see whether, properly analysed, it is intended to provide a bar to its exercise at all, or whether it is merely intended to prevent the power being exercised under the particular legislation in which the restriction is to be found … [57] In my judgment Mr Sales is correct in his construction of this provision. It is drafted in very broad terms which provide a source of power enabling authorities to do many things which they could not hitherto have done. In my view, a 'prohibition, restriction or limitation' is one which will almost always be found in an express legislative provision. I do not discount the possibility that such might arise by necessary implication, but I would have thought that would be very rare. (I note that the Guidance to which I have made reference assumes that any restriction, prohibition or limitation must be expressly spelt out in the legislation: see paras [62] and [63]. However, Mr Sales did not adopt that position, and I doubt whether it must always do so as a matter of construction of s 3.) Of course, where Parliament has conferred a positive power to do X, it will by implication have denied the right for that power to be exercised to do Y, but that is merely saying the Parliament has defined a clear boundary for marking out the scope of the power. In my view it would be inapt to describe the area where no power has been conferred as constituting a 'prohibition, restriction or limitation' on the power which is contained in an enactment."
[70]In The Queen on the application of W v Lambeth London Borough Council [2002] EWCA Civ 613 , [2002] 2 FLR 327 , the Court of Appeal held that A v Lambeth had been wrongly decided. It was therefore not necessary for the Court of Appeal to deal with the alternative argument based on the 2000 Act. It did, however, albeit briefly, consider the Enfield case. At para [75] the Court said this:
"Because of the view we take of the meaning of s 17 of the 1989 Act it is unnecessary for us to consider, as Elias J felt obliged to, the appropriateness of s 2 as a vehicle for the powers W seeks to invoke, particularly where a local authority like Lambeth has not yet finalised their community strategy. Mr Goudie QC argued, however, that the power under s 2(1) of the Local Government Act 2000 would not be available to his clients because they would be unable to provide accommodation to W and her family because of the "prohibition, restriction or limitation on their powers" (see s 3(1)), which is contained in ss 190(3) and 185 of the Housing Act 1996. The language of those provisions is, however, strikingly different from the language of s 122(5) of the Immigration and Asylum Act 1999 … Section 190(3), for example, merely provides that a local housing authority has a more limited duty in cases where an applicant is not found to have a priority need. It does not constitute a prohibition, restriction or limitation on their powers. In any event, even if a local housing authority's powers were indeed limited in the ways suggested by Mr Goudie QC, these provisions say nothing about the powers of social service authorities, and we can see nothing in s 3(1) of the Local Government Act 2000 to preclude a social service authority from providing financial help, or temporary accommodation, to the family of a child in need if they think fit."
[71]Now as I read what the Court of Appeal was there saying, it was of the opinion that neither section 185 nor section 190(3) of the Housing Act 1996 constitutes a "prohibition, restriction or limitation" within the meaning of section 3(1) of the 2000 Act, whereas section 122(5) of the Immigration and Asylum Act 1999 does. It may be convenient, therefore, if I set out these three provisions.[72]Section 185(1) of the Housing Act 1996 provides that:
"A person is not eligible for assistance under this Part if he is a person from abroad who is ineligible for housing assistance."
[73]Sections 185(2) and 185(3) define who are the persons who fall within subsection (1).[74]Section 190 of the Act provides as follows:
"(1) This section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance but are also satisfied that he became homeless intentionally. (2) If the authority are satisfied that the applicant has a priority need, they shall ... secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation … (3) If they are not satisfied that he has a priority need, they shall provide him with advice and such assistance as they consider appropriate in the circumstances in any attempts he may make to secure that accommodation becomes available for his occupation."
[75]Section 122(5) of the Immigration and Asylum Act 1999 provides that:
"No local authority may provide assistance under any of the child welfare provisions in respect of a dependant under the age of 18, or any member of his family, at any time when [certain conditions are satisfied]."
[76]One can well see why the Court of Appeal drew the distinction it did between the 1996 and 1999 Acts.[77]The approach of Elias J in the Enfield case has been followed both by Silber J in The Queen on the application of Theophilus v The London Borough of Lewisham [2002] EWHC 1371 (Admin) and by Moses J in The Queen on the application of Khan v Oxfordshire County Council [2002] EWHC 2211 (Admin).[78]In Theophilus the question was whether there was a "prohibition, restriction or limitation" in the Teaching and Higher Education Act 1998 which precluded a local authority providing a university student with financial support under the 2000 Act. Silber J, having adopted Elias J's analysis (see at paras [21]-[24]), continued (paras [24]-[25]):
"[24] … it is said that these provisions in the 1998 Act amount to a "prohibition, restriction or limitation" of the kind envisaged by section 3 of the 2000 Act on the powers of Lewisham to invoke section 2(1) for providing student support to the claimant. [25] I am unable to agree as the powers under the 1998 Act come from a different financing regime for which the Secretary of State, and not Lewisham, is responsible. I cannot discover any suggestion in the 1998 Act that it is an exclusive and comprehensive form of funding for students so as to limit or restrict the funding powers of Lewisham. In any event, I would have difficulty in finding that the 1998 Act contained a "prohibition, restriction or limitation" affecting the subsequent 2000 Act especially as there is no reference in the 1998 Act, whether by later amendment or otherwise, to the 2000 Act. In addition, as I have already explained, section 2 of the 2000 Act is a free-standing and separate source of power given to local authorities such as Lewisham. Thus, I conclude that Lewisham did have power to give student support to the claimant pursuant to section 2(1) of the 2000 Act."
[79]In Khan the question was whether section 21(1A) of the 1948 Act is a prohibition, restriction or limitation of power within the meaning of section 3 of the 2000 Act so as to prevent a local authority providing financial or other assistance pursuant to the 2000 Act to a person who, it was agreed, was by virtue of section 115 of the Immigration and Asylum Act 1999 excluded from benefit and accordingly not eligible for assistance under section 21 of the 1948 Act.[80]Section 21 provides in material part:
"(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing - (a) residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; … (1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection 1(a) if his need for care and attention has arisen solely (a) because he is destitute; or (b) because of the physical effects, or anticipated physical effects, of his being destitute."
[81]Moses J, having adopted Elias J's analysis (see at paras [29]-[31]), explained why he had come to the view (para [28]) that the restriction in section 21(1A) does fall within the meaning of the crucial words in section 3 of the 2000 Act. He said (paras [31], [33]):
"[31] … Elias J took the view that section 17 of the Children Act 1989 contained no restriction or limitation within the meaning of section 3 of the Local Government Act 2000. Section 17 merely failed to provide a power to provide accommodation … [33] I take the view that, unlike the absence of power under section 17 of the Children Act 1989, the prohibition under section 21(1A) is a prohibition within the meaning of section 3. Thus, it is not open to the local authority to provide finance under the Local Government Act 2000."
[82]Again, one can well see why, applying Elias J's approach, Silber J took one view of the 1998 Act and Moses J a different view of section 21(1A) of the 1948 Act.[83]The longer the argument proceeded the more convinced I became of the compelling force of Elias J's analysis in the Enfield case. It is in my judgment, if I may respectfully say so, plainly right. And its application, by the Court of Appeal in W v Lambeth , by Silber J in Theophilus and by Moses J in Khan , illustrates very clearly, as it seems to me, just how Elias J's analysis is to be applied in practice.[84]Consistently with that approach, as it seems to me, there is wholly absent from all the legislation to which I have been referred anything that can properly be described as a "prohibition, restriction or limitation". None of the statutory provisions to which Ms Lang has drawn my attention comes even close in either its form or its effect to section 122(5) of the 1999 Act or section 21(1A) of the 1948 Act – that is, to the kind of provisions which the Court of Appeal and Moses J had in mind. I repeat in this context what I have already said in relation to section 111 of the 1972 Act.[85]Accordingly, even in the absence of the express power which in my judgment is to be found in section 30(1) of the 1948 Act, it would, by virtue of section 2 of the 2000 Act, be intra vires ESCC to make use of a user independent trust: it would, in my judgment, be intra vires ESCC to make payment of monies to the Company in accordance with the Contract. Conclusion[86]I conclude therefore that the use by a local authority of a user independent trust in this context is intra vires. Specifically I conclude that it would be intra vires ESCC to make payment of monies to the Company in accordance with the Contract.[87]Before parting from this part of the case there is one other matter I wish to mention.[88]It emerged during the course of the hearing that the texts of both section 29 of the 1948 Act and section 1 of the 1996 Act which I had been supplied with were defective. The copies supplied were of those provisions as originally enacted and not as they are currently in force. Precisely the same thing had happened to me in another case last year. The same thing occurred yet again in the very next case in my list. On each occasion time was wasted – I use the word in both its colloquial and its technical sense.[89]It is quite intolerable that the Bench should be so ill-served by the Bar. Judges can be expected to be familiar with those statutes which are part of their daily fare. But no judge can be expected to be familiar with the minutiae of legislation such as the 1948, 1970, 1990 and 1996 Acts. It is the obligation of the claimant to supply the court with copies of the relevant legislation: CPR 54.6(2), 54PD5.7(5) and 54PD5.9 (an obligation which my experience of handling paper applications for permission suggests is all too often ignored). The very least the Bench is entitled to expect is that counsel will take the trouble to ensure that the court is supplied with copies which are correct and up-to-date.

Cited in 3 later judgments