We often hear general complaints that councils expect people to get themselves to the services they have been assessed as needing. Councils’ transport-related powers and duties are found all over the place in local government legislation, not just in one statute, or one community care statute. Thus it is hard to give any clear analysis as to the legality of such a stance, since it would all depend on the context, and the function concerned.
What is clear is that most of the transport functions of local authorities are powers, and not duties, and the general principle would therefore be that powers do not have to be exercised if there is no money available – they are discretionary.
If authorities want to save money by cutting back on transport or concessionary travel, it will therefore generally be lawful for them to do so, subject to two very important principles. They must never say ‘never’, for to do so is to have fettered the relevant discretion, which is in itself unlawful. Individual requests must be properly considered, against a policy, for sure, but always bearing in mind that the case might need to be treated as exceptional.
Secondly, authorities must ask themselves what the Administrative Court would be likely to say if on a community care assessment the authority has acknowledged that there is a clear need for a certain service, but then gone on to deny transport, having been told by carers that without it there is no way the client is able to get there under their own steam. To us, it seems a bit too like unreasonableness, to acknowledge a need, and offer to provide a service eg a place at a daycare facility, but then deny the individual the means to get it. This would be all the more so if the client is mentally incapacitated.
Now the Carers and Disabled Children Act is in force, it is all the more important that carers – those who often contribute the most in terms of time, let alone petrol, involved in transporting of learning or physically disabled persons backwards and forwards to facilities – appreciate that the Act gives them the right to a service in their own right, and that this can be a direct payment in lieu of a service, such as the money for taxi fares, perhaps for sharing journeys with other local people who need help. The test for eligibility is related to sustaining the carer in their current caring contribution, and anything that eases the load may be more cost-effective than providing the transport from council resources, or alienating the carer to the point of giving up the role altogether.
Health, Social Services’ and Local Authorities’ joint working powers under the Health Act cover integrated transport services but we do not know if any of the approved projects relate to this service area.
We think that the specific Chronically Sick & Disabled Persons Act services related to transport are as follows:
(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home, or assistance to that person in taking advantage of educational facilities available to him;
(d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said s29 [NAA] or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;