Making Considerations Before Contract Engagement - Essay Example

THE JUDICIAL REASONING OF THE HOUSE OF LORDS IN R V GLOUCESTERSHIRE COUNTY COUNCIL, EX PARTE BARRY (1997) AC 584 Date Facts of the Case Based on the facts, the case was between Michael Barry and the council authority of Gloucestershire in UK. Barry was born in 1915 and suffered severe dizzy spells and nausea at the age of 82years which incapacitated her ability to perform various tasks (House of Lords, 1997). She used to get around using Zimmer frame due to her hip fracture and had no contact with any of her immediate relatives. She was therefore, served sufficiently with two anonymous friends who assisted him in performing some routine duties (Aden Chambers, 2010). Under the countries disability act it is deemed statutory that individuals with such incapacitation be assisted and financed to enhance their ability to attain their potential with sustainable resources. Barry was therefore, referred to the social department of Gloucestershire council on 15 September which adequately assessed her needs and made arrangements to provide her with the services (Aden Chambers, 2010). As assessed he was to be supported with home care support for shopping, pension, laundry and cleaning services and provision of meals on wheals 4 days a week. She used to receive routine visits from the department officials where nearly after some time her needs were re assessed and identified to be the same. However, on 29 September 2004 after the review she received communication from the department stating a drop on some key services offered by the local authority citing lack of sufficient funding from the central Government (Diamond 2009, P, 345). This solidly initiated the need for legal redress to enable provision of entire services by the department. The case was heard and determined by judges as analysed below (Aden Chambers 2010). Lord Lloyd In his outset assertion based on legal provisions of the land, Judge Lloyd categorically stated that the local department had a statutory duty of providing disadvantaged individuals with necessary life essentials (Pumwar and Peloquin, 2011, p. 63). Although he ruled that the local council had no power to regulate percentage resources allocated by the central Government, he noted that local authority had an obligatory duty to discharge and that their resource constraints had no bearing. He state that once the assessment and amicable agreement was done the department in whatever state should have not reneged from providing the services to Barger (Kaldor, 2003, p.56). He stated in his ruling “The defendant’s actions were unlawful for the reason that on the sole basis of having exhausted available resources, withdrawn services previously provided or offered to the applicant pursuant to section 2 of the Chronically Sick and Disabled Persons Act 1970, without a lawful reassessment of the applicant" (House of Lords, 1997). He further stated that the local authority had a duty to make necessary arrangements when constrained with resources to ensure effective service delivery (Halliday 2004, p, 120). On the question whether the council is rightfully within its powers to consider available resources in assessing individuals needs. The judge concluded that on his part the authority had the right to consider and take account of their available disposable resources both when assessing needs and when deciding on how to make allocations (Cane and Conaghan, 2008, p. 341). He also stated that they have the right to adjust their arrangements to meet individual’s needs. In brief, legal procedures requires the local department to make available their services as that is their responsibility however, it was lawful for them to decide what necessities they can provide to the applicant in consideration of resource availability. Lord Nicholls’s Approach Before Lord Nicholls and Lord Clyde the case was heard and took a dynamic dimension. The case as presented before Lord Nicholls was in similar content as presented to Lord Lloyd as it was concerned to the extent to which the authority could consider resource constraints as a reason to avoid undertaking its statutory duty to the disabled (Kaldor, 2003, p. 43). Lord Nicholls asserted in his ruling that the authority had the responsibility to adopt stringent criteria when assessing the needs of the disabled under community care to enhance fairness to both parties depending on their resource capability (Jago and Barnett, 2011, p. 355). Further, he stated that local establishment should have had regard to cost effects when carrying out the assessment of Mr Barry needs to fully understand the cost implications in relation to available resources to avoid frustrating the disabled by withdrawing committed services (Oxford Journals of Legal Studies, 2012). His ruling was not in sharp contrast with Lloyds ruling since they both concurred that council had a statutory obligation to the disabled. They only had different opinion in answering the relevance of council’s right to withdraw some assistance offered to Barry. In this view Lloyd stated that all the parties had the right to consider their positions anytime to ensure fairness while Nicholls asserted that such considerations should be done before any commitment (New Law Journal 2011, p. 2.) Lord Clyde’s Contribution Lord Clyde in determining the same case rather took different approach. He strongly asserted that local authorities’ resource constraints were in no way relevant in determining the needs of the applicant however held that it was relevant in deciding whether it is necessary to make adequate arrangements to meet the needs (Hepple 2002, p. 162). He noted that needs of disabled individuals cannot be determined by resource availability due to their basic nature hence it is ,only fair that disabled individuals receive necessary assistance as spelt out in the community care act 1990 and disabled act 1970 (Spencer & Walsh 2011, P, 69). His ruling was well received by disabled individual’s who also held that the plight of their needs should not be decided with the authority but to critically asses their needs and support adequately (Oxford Journals of Legal Studies 2012, P, 9). The judge in his view further held that the concern of constraint resources by the local authority should not deny the disabled from enjoying necessary benefits (Royal Institute of British Architects 2011). His clear ruling had a different aspect contrary to other two rulings. He strongly asserted the need to respect disables benefits at all cost and failed to recognise how the councils financial argument was related to satisfying Barry’s needs. He stated the argument could only be applicable in determining whether any possible arrangements in meeting the needs are appropriate (Hannibal and Hardy 1997, p. 124). His ruling was significantly different from the ruling of Lord Llyod and Lord Clyde who asserted relevance and the right for the authority to make considerations based on their resource capacity. Conclusion It is legally clear that any contract entered between parties must be adhered to. The case between Barry and the council department best provides significance of making vital considerations before contract engagement. This was exposed when council department was constrained by resources that could enable them fulfil their obligations to the disabled. References House of Lords, 1997, Judgments -- Reg. v. Gloucestershire C.C. and the Secretary of State for Health. Ex parte Barry, London UK. Accessed 26 Jan. 2012. Aden Chambers, 2010, R (McDonald) v Royal Borough of Kensington & Chelsea London, UK. Accessed 26 Jan. 2012 http://www.ardenchambers.com/index.php? page=e-flash-402---r-mcdonald-v-royal-borough-of-kensington-chelsea. Halliday, S 2004, Judicial review and compliance with administrative law, Oxford, UK: Hart Publishing. Cane, P and Conaghan 2008, The new Oxford companion to law, London UK, Oxford University Press, 2008. Hepple, A 2002, Social and labour rights in a global context: international and comparative, London UK, Cambridge University Press, The New law journal, Volume 155, 2011, London UK, Viewed 26/01/2012 Kaldor, M 2003, Global civil society: An answer to war, Cambrige UK, Wiley-Blackwell Publishers Hannibal, M and Hardy, S 1997, Law for Social Workers, London, UK: Routledge Publishers. Oxford Journals of Legal Studies, 2012, Oxford UK, Viewed 26/07/2012, http://ojls.oxfordjournals.org/ House of Lords, 2011, The Law reports: House of Lords, and Judicial Committee of the Privy Council, and peerage cases, London UK, Incorporated Council of Law Reporting for England and Wales Publishers. Punwar, J and Peloquin, M 2011, Occupational Therapy Principles and Practice, London, UK, John Wiley & Sons Publishers. Jago, R & Barnett, H 2011, Constitutional & Administrative Law, New York NY, Taylor & Francis Publishers Royal Institute of British Architets, 2011, RIBA Journal, Volume 75, Issues 1-6, Social Networks and Blog, London UK, Royal Institute of British Architects Publishers. Spencer, M & Walsh, N 2011, Medicines, Medical Devices and the Law, London UK Cambridge University Press Diamond, B 2009, Legal Aspects of Physiotherapy, London UK, John Wiley and Sons Publishers. Read More