Disabled solicitor’s specially-adapted flat held to qualify for relief from rates under section 45, General Rate Act 1967–Structure ‘of a kind similar’ to structures supplied under National Health Service Act 1946 for after-care of handicapped persons–Majority’s decision does not involve an extension of relief under section 45 ‘far beyond anything
This was an
appeal by a valuation officer, Mr Keith Oliver, from a decision of the Lands Tribunal
granting Mr Neville David Vandyk, a disabled solicitor, relief from the bulk of
the rates otherwise payable upon a specially-adapted second-floor flat at 7
Addisland Court, Holland Villas Road, Kensington, London W14.
Mr A Fletcher
(instructed by the Solicitor of Inland Revenue) appeared for the appellant, and
Mr D G Widdicombe QC and Mr M Horton (instructed by N D Vandyk) represented the
respondent.
Giving
judgment, CAIRNS LJ said: This is an appeal from a decision of the Lands
Tribunal in a rating case. It concerns a flat occupied by a solicitor, Mr N D
Vandyk, who at all material times has suffered from severe disability following
an attack of poliomyelitis in 1947. He claims that the flat is a structure of
which no account should be taken in valuing the hereditament of which it forms
part. He bases this claim on section 45 of the General Rate Act 1967, which
affords relief, inter alia, for certain structures supplied for the
after-care of persons suffering from illness and for the welfare of handicapped
persons. The Lands Tribunal decided in his favour. The valuation officer
appeals to this court.
The flat is a
second-floor flat at 7 Addisland Court, Holland Villas Road, London W14. In
1968 it was in the valuation list at a gross value of £500. On June 21 1968 Mr
Vandyk made a proposal to reduce that value to nil. On October 5 1971 he made a
second proposal to the same effect in order to get the benefit of legislation
which had been passed in the meanwhile. The valuation officer objected to both
proposals, and they went to the local valuation court, which held that the flat
as a whole should not be exempted but that relief should be granted in respect
of two rooms so as to reduce the gross value to £425. Technically there were
two decisions to that effect, and each side appealed against each decision, so
that there were four appeals. These were consolidated and heard by Mr Stuart
Daniel and Mr E C Strathon, members of the Lands Tribunal. They gave a single
decision, in effect dismissing both appeals of the valuation officer and
allowing both appeals of the ratepayer to the extent of reducing the gross
value to £80. There was no need to differentiate between the two proposals,
because it was not suggested that there was any material change in the factual
situation between the two dates and it was not held that the new legislation
between the two dates was necessary to establish the ratepayer’s case. The £80
was an agreed figure representing the residual value of the hereditament apart
from the structure of the flat. At each stage the ratepayer has claimed that if
he is not entitled to relief in respect of the whole structure of the flat he
is entitled to it in respect of two rooms (a bedroom and a bathroom) and the
central heating. As already indicated, the local valuation court, while
deciding against him on his overall claim, was in his favour on the two rooms.
It is common ground that if on this appeal the valuation officer is entirely
successful then the gross value of £500 is to be restored; if he is successful
as to all except the central heating, then the gross value is £475; if he is
successful on all except the two rooms it is £425; if as to all except the
central heating and the two rooms, £400. So there is no dispute about figures,
the issues are issues of principle.
Section 45 of
the General Rate Act 1967 provides as follows:
‘In
ascertaining for the purposes of section 19 of this Act the gross value of a
hereditament, no account shall be taken (a) of any structure belonging to the
Minister of Health and supplied by that Minister or, before August 31 1953, by
the Minister of Pensions, for the accommodation of an invalid chair or of any
other vehicle (whether mechanically propelled or not) constructed or adapted
for use by invalids or disabled persons; or (b) of any structure belonging to a
local health authority or to a voluntary organisation formed for any of the
purposes mentioned in section 28 (1) of the National Health Service Act 1946
(which relates to the prevention of, and to the care and after-care of persons
suffering from, illness) and supplied for the use of any person in pursuance of
arrangements made under the said section 28 (1); or (c) of any structure
belonging to a local authority within the meaning of section 29 of the National
Assistance Act 1948 (which relates to welfare arrangements for blind, deaf,
dumb and other handicapped persons) or to such a voluntary organisation as is
mentioned in section 30 of that Act and supplied for the use of any person in
pursuance of arrangements made under the said section 29; or (d) of any
structure which is of a kind similar to structures such as are referred to in
paragraph (a), (b) or (c) of this section but does not fall within that
paragraph by reason that it is owned or has been supplied otherwise than as
mentioned in that paragraph.’
Mr Vandyk
founds his case on paragraph (d) of that section, linked with either (b) or
(c). He says that the flat was not supplied by the local authority or by a
voluntary organisation, but is a structure similar to what could have been so
supplied for one or other of the purposes mentioned in those paragraphs, and
that that entitles him to relief.
Since 1947 Mr
Vandyk has been paralysed in both legs and in his left arm and has been
confined to a wheelchair. He has continued to need after-care within the
meaning of section 28 (1) of the National Health Service Act 1946 and section
12 (1) of the Health Services and Public Health Act 1968. (Section 45 of the
Act of 1967 now has to be read as if for the reference to section 28 (1) of the
Act of 1946 there were substituted a reference to section 12 (1) of the Act of
1968: see schedule 3, Part I, of the latter Act.) Up to 1953 Mr Vandyk lived with his parents.
He then took a flat in Holland Villas Road, W14, had some structural
alterations done to make it more suitable for his needs, and employed a
housekeeper and a chauffeur, both of whom gave him special help because of his
disabilities. In 1956 he married, and since then his wife has given him
constant attention except when she is away from home, and then he has a trained
nurse to look after him. He needs somebody to help him into bed, wash him,
apply ointments etc. He and his wife have a daughter, born in 1960, who lives
with them. They were anxious to find a more suitable flat than the one in
Holland Villas Road, and it was after long search that they found their present
flat, of which the special advantages were that it had wide doors (important to
facilitate the movement of his chair), central heating (necessary for a person
who cannot keep warm by ordinary exercise), and porters (who could assist him
in and out of his car, or in awkward situations as, for example, once when he
got stuck in his bath). He said in evidence that he did not think he would have
removed from his previous flat to his present one if he had not been an ill
man. He obtained a lease of his present flat in June 1968 and had a number of
alterations made to it in order to meet his special needs. A partition wall was
removed so as to enlarge the bathroom and absorb into it an adjoining we and
lobby; a handle was fixed to the wall at the side of the bath and another by
the wc; a special wc seat, raised-above normal height, was fitted; an electric
bell-push was installed in the bathroom. The level of the bathroom floor was
altered to facilitate movement into and out of the bath. In his bedroom the
wash-basin was altered to enable him to approach it and wash while sitting in
his wheelchair. A bracket with a hanging chain and handle was placed over his bed
to enable him to turn over during the night. By the bed another bell-push was
installed. In the passage the plaster arris was rounded. Evidence was given by
Dr Spencer, the consultant in charge of the intensive-care and respiratory unit
at St Thomas’s Hospital. He said that 30 per cent of poliomyelitis patients
depended on other people for their daily care. A patient with no family would
normally need to live in an institution. There were great advantages in living
out, in terms of happiness, psychological adjustment and risk of infection.
Warmth was important and central heating most desirable. Evidence was also
given by Mr Large, who had contracted poliomyelitis in 1962 and who, like Mr
Vandyk, had to live in a wheelchair. He and his wife had taken a bungalow at a
cost which was really beyond their means and had had alterations made to it
such as a ramp to the back door, adjustments to the bathroom and wc, central
heating, reduced partitions etc. He too was looked after by his wife. No
evidence was called for the valuation officer.
Now, in
relation to Mr Vandyk’s claim under paragraph (b) of section 45, it is
necessary to turn to section 28 (1) of the National Health Service Act 1946.
That, as originally passed (and therefore as relevant to the 1968 proposal),
provided as follows:
‘A local
health authority may with the approval of the Minister, and to such extent as
the Minister may direct shall, make arrangements for the purpose of the
prevention of illness, the care of persons suffering from illness or mental
defectiveness, or the after-care of such persons, but no such arrangements
shall provide for the payment of money to such persons, except in so far as
they may provide for the remuneration of such persons engaged in suitable work
in accordance with the arrangements.’
For the
purposes of the 1971 proposal the corresponding provision is in section 12 (1)
of the Health Services and Public Health Act 1968, which so far as material
reads as follows:
‘Subject to
the next following subsection, a local health authority may, with the approval
of the Minister, and to such extent as he may direct shall, 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, and in particular, but without prejudice to the generality of the
foregoing provisions, for (a) the provision, equipment and maintenance of
residential accommodation for the care of persons with a view to preventing
them from becoming ill, the care of persons suffering from illness and the
after-care of persons who have been so suffering. . . . ‘
In relation to
paragraph (c) of section 45, there was no relevant change in the law between
1968 and 1971. Section 29 (1) of the National Assistance Act 1948 provides:
‘A local
authority shall have power to make arrangements for promoting the welfare of
persons to whom this section applies, that is to say persons who are blind,
deaf or dumb, and other persons who are substantially and permanently handicapped
by illness, injury, or congenital deformity or such other disabilities as may
be prescribed by the Minister.’
Section 45 of
the Act of 1967, and corresponding sections of earlier Acts, have been
considered in a number of cases in the Lands Tribunal, the Court of Appeal and
the House of Lords, and certain propositions are now well-established and were
common ground in the arguments before us. The word ‘supplied’ in this section
means no more than ‘provided’ (Almond v Birmingham Royal Institute
for the Blind [1968] AC 37 per Lord Hodson at page 55F). The structure may
be provided by the ratepayer himself (Walker v Wood [1962] 1 WLR
1060 per Lord Denning MR at page 1064). The structure may be of unlimited size,
and may be standing by itself or annexed to a main building (Almond’s
case, per Lord Reid at pages 51-2 and per Lord Hodson at pages 55-7). ‘Similar’
in paragraph (d) means similar in purpose or adaptability (Walker’s
case, per Lord Denning MR at page 1064 and per Pearson LJ at page 1066).
The Lands
Tribunal, in deciding that the ratepayer was entitled to relief in respect of
the whole structure of the flat, held that both section 28 (1) of the 1946 Act
and section 12 of the 1968 Act gave power to provide residential accommodation;
that the flat was residential accommodation of a kind within that power; and
that it was provided by Mr Vandyk for the purpose of his receiving after-care
there. They held that in considering whether the flat was a structure ‘similar
to structures such as are referred to in paragraph (a), (b) or (c),’ the test
was whether it was intra vires a local authority to supply such a
structure under one of the sections mentioned, and that, it being intra
vires, the ratepayer was entitled under paragraph (b) to the relief he
sought. No conclusion was reached as to whether the same considerations applied
to paragraph (c). Mr Fletcher’s attack on the tribunal’s decision was a
three-pronged one. He said first, that the purpose for which Mr Vandyk provided
himself with this flat was not for after-care for himself, but as a home for
himself and his family; secondly, that the provision of a flat is not within
the powers given by the sections referred to in section 45, but rather within
housing powers; thirdly, that if it is within the relevant powers, it is
necessary for the ratepayer claiming relief to go further and establish either
that some local authority or voluntary organisation has in fact made such
provision under one of the sections, or that the local authority or voluntary
organisation could reasonably be expected to do so. Mr Widdicombe, in addition
to contending that the Lands Tribunal’s decision was right for the reasons
which they gave, submitted that the same result could be reached under
paragraph (c) of section 45. I proceed to examine Mr Fletcher’s three headings.
First, can it be said that Mr Vandyk provided himself with the flat for the
purpose of after-care? Mr Fletcher
contends that this would only be established if it were shown that this was the
sole or the dominant purpose that Mr Vandyk had in mind in taking the flat. Now
there is not in the legislation any adjective qualifying the word
‘purpose.’ This may be contrasted with
the Rating and Valuation (Apportionment) Act 1928, section 3 (1), proviso,
where an industrial hereditament is defined so as not to include a factory if
it is primarily used for non-industrial purposes. If after-care is to be
given in a flat, and if the flat is in some substantial ways specially chosen
and equipped as a place suitable for the needs, arising from his disability, of
the person who requires the after-care, then in my view it is right to say that
it is supplied for the purpose of the after-care. Accordingly, in my judgment
the Lands Tribunal rightly decided that the flat was supplied for that purpose.
I come next to
the question whether section 28 (1) of the 1946 Act did give powers to a local
authority to provide non-institutional residential accommodation for
after-care, and whether section 12 (1) of the 1968 Act has that effect. It is
conceded that both Acts authorise the provision of some residential
accommodation, but the valuation officer contends that this could probably only
be provided in an institution, and not in a flat, and must be subsidiary to the
after-care. That the 1968 Act enables an authority to provide residential
accommodation is incontestable, because of the express provisions of section 12
(1) (a). There is no such express provision in the 1946 Act, but it is accepted
that section 28 (1) must by its general language include such a power, for
these reasons. The word ‘care’ also occurs in section 22 (1) of that Act.
Section 22 (2), as amended by the Health Services and Public Health Act 1968,
section 14 (1), authorises a local authority to recover payment for residential
accommodation provided under section 22 (1). Hence, it is agreed, the word
‘care’ in section 22 (1) must include the provision of residential accommodation,
and the same must be true of section 28 (1). What is said on behalf of the
valuation officer, however, is that both section 28 (1) of the 1946 Act and
section 12 (1) of the 1968 Act are directed to providing care, and that
accommodation can only be provided as incidental to that care. Care, it is
said, involves a human element, and if it is necessary or convenient for the
furnishing of that care that the patient should reside in a particular place
(normally, if not always, an institution), then the place may be provided under
the section. But it is contended that a local authority could not under the
section provide a home for a man and his family in which, incidentally, he was
to receive such care as he needed following an illness. Any such provision, it
is
after-care. This involves a very similar question to the one considered earlier
of what is the purpose with which Mr Vandyk took this flat. Indeed, on this
part of the case Mr Fletcher again used the phrase that the dominant purpose
was what had to be considered. Again I reject that view. I think that if a
local authority were of opinion that a person was in need of after-care
following an illness and that the after-care could best be given in a flat with
the support of a wife and child, the flat being selected and equipped to make
the care of the person as effective as possible, then that is within the
section.
This brings me
to Mr Fletcher’s third point. Assuming that a local authority could supply a
flat under section 28 (1), is it necessary for the ratepayer to go further and
establish that a local authority or voluntary organisation has done so
or would do so? It was at one
stage contended by the valuation officer that for the relief to be granted it
had to be shown that some local authority or voluntary organisation had in fact
made such provision, but that is no longer persisted in. It may be noted that
in the 12th edition of Ryde on Rating at page 342 the matter is put in
this way: ‘A question which remains so far unanswered, however, is whether the
similarity must be to structures already provided within paragraphs (a), (b) or
(c), or whether it is sufficient if the similarity is to structures which could
be provided. It is submitted that the latter construction is the correct
one.’ So the learned editors did not
even advert to the intermediate position now contended for by the valuation
officer. It seems to me highly unlikely that Parliament intended that before
relief could be granted for a structure provided by somebody other than a local
authority or voluntary organisation, it should be necessary to inquire first
whether any local authority or voluntary organisation had in fact so provided,
and if not, whether it was probable that such provision would be made. There
was evidence in the form of letters before the Lands Tribunal that certain
voluntary organisations had in fact provided flats under these powers, but the
valuation officer challenged the conclusions to be drawn from the letters. Mr
Fletcher at the hearing before us took each of them in turn and put forward
reasons why the accommodation referred to may not have been provided under
section 28 or section 12. This shows how difficult the first stage of the inquiry
would be. Moreover, it would be absurd that if once it could be shown that a
single voluntary organisation had made the provision, then, and not before
then, all occupiers who had made similar provision for themselves should become
entitled to relief. The next stage, inquiring what a local authority or
voluntary organisation would do, would involve consideration of the
possible advantages and disadvantages of exercising the powers (eg, would the
cost to the general body of ratepayers of providing accommodation for which
rate relief would be allowed outweigh the saving effected by providing
accommodation for which a rent could be charged under section 28 (2) of the
1946 Act or section 12 (5) of the 1968 Act, instead of accommodation in an
institution?). In my opinion it is more reasonable to suppose that the
intention of paragraph (d) is to create the single test, is it within the
powers given by section 28 (1) or section 12 (1) to make the provision? I therefore interpret paragraph (d) in that
way.
Accordingly I
am of opinion that Mr Fletcher fails to establish any of the three propositions
on which he relied. Mr Vandyk is therefore entitled to the relief which he
claims in respect of the whole flat by reference to paragraph (b) of section 45
of the Act of 1967. Mr Fletcher suggests that this conclusion involves the
extension of rating relief under section 45 (d) of the Act of 1967 far beyond
anything Parliament can have intended. He says that if relief can rightly be
given for this flat, then, since ‘similar’ means ‘similar in purpose or
adaptability,’ every occupier of a house or flat will be able to claim relief
for it if he or any member of his family is ill and in need of care, or has
been ill and is in need of after-care. I do not for a moment accept that. I do
not consider that the physical characteristics of the structure can be wholly
disregarded. The conclusions I have reached in this case do not go beyond the
facts of this case, and it is an important part of the facts that the flat was
chosen because it had special features making it suitable to provide for the
needs of a person who required after-care and was adapted and equipped to
improve its suitability for that purpose.
My conclusion
on paragraph (d) of section 45 makes it unnecessary for the purpose of my
judgment on the appeal to express an opinion as to whether Mr Vandyk is
entitled to relief through paragraph (c) or whether, if his claim as to the
whole flat were unsuccessful, he could succeed as to the two rooms or the
central heating. We have, however, been asked by counsel to deal with these
matters, and as it is possible that this case will go further, I will briefly
indicate my opinion about them. In relation to paragraph (c), Mr Fletcher takes
the same three points as before except that the contrast is not now between
after-care and housing but between welfare, as provided for in section 29 of
the National Assistance Act 1948, and housing as provided for in section 21 of
that Act. The Chronically Sick and Disabled Persons Act 1970 provides by
section 3 (1) for housing accommodation for the disabled. Its terms are as
follows:
‘Every local
authority for the purposes of Part V of the Housing Act 1957 in discharging
their duty under section 91 of that Act to consider housing conditions in their
district and the needs of the district with respect to the provision of further
housing accommodation shall have regard to the special needs of chronically
sick or disabled persons; and any proposals prepared and submitted to the
Minister by the authority under that section for the provision of new houses
shall distinguish any houses which the authority propose to provide which make
special provision for the needs of such persons.’
There is
nothing in that Act to link that provision with section 29 of the 1948 Act. In
section 2 (1) (e) of the Act of 1970 there is a provision for the adaptation of
houses for the disabled, and the final words of section 2 (1) do bring this
power within section 29 of the 1948 Act. This difference of treatment suggests
that the supply, as distinct from the adaptation, of a residence for a disabled
person is not intended to be covered by section 29. Therefore, it is contended
by the valuation officer, it is not caught by paragraph (c) of section 45.
In Jewish
Blind Society Trustees v Henning [1961] 1 WLR 24, decided under
section 9 of the Rating and Valuation (Miscellaneous Provisions) Act 1955,
which was similar to section 45 of the Act of 1967, it was held that a home for
the blind supplied by the society was not of a kind similar to such structures
as are referred to in paragraph (c), because that paragraph and section 29 of
the 1948 Act did not contemplate structures for use as residential homes: see
per Lord Evershed MR at page 33 and per Romer LJ at pages 34-5, Harman LJ
agreeing. Mr Widdicombe recognises that that case is an obstacle to his success
under paragraph (c), but he seeks to overcome it by contending that the case
was dealing with institutional accommodation and that the decision was made per
incuriam, because section 21 (8) of the 1948 Act was overlooked. That
subsection provides:
‘Save as
provided in the last foregoing subsection, nothing in this section shall
authorise or require a local authority to make any provision authorised or
required to be made (whether by that or by any other authority) by or under any
enactment not contained in this Part of this Act.’
The contention
is that that subsection by implication authorises a local authority to make a
provision under section 21 which could have been made under section 29 (which
is contained in the same part of the Act), and that this shows
fact that the accommodation considered in that case was institutional is
fundamental to the decision, and I do not consider that the negative provision
of section 21 (8) carries the positive implication in relation to section 29
for which Mr Widdicombe contends. If it did have that effect, it is difficult
to believe that it would have been overlooked by all three members of the court
and by the experienced counsel in the case when they were considering the
section of which this subsection forms part. Accordingly, if Mr Vandyk had to
depend on paragraph (c) I do not think his claim should succeed.
Coming, then,
to the parts in respect of which an alternative claim was made, I see no reason
to differ from the conclusion, reached both in the local valuation court and at
the Lands Tribunal, that if relief could not be given for the whole flat, it
would fall to be given under paragraph (b) for the two rooms but not for the
central heating. As to both of these ‘parts,’ Mr Fletcher’s contentions were
that a part of a structure cannot be a structure within the meaning of section
45, and that relief cannot be given for a structure not severable from the
entity of which it forms part nor separately lettable. This court in Almond’s
case [1966] 2 QB 395 at page 413 took the view that part of a structure could
itself be a structure, and although Mr Fletcher criticises some of the
reasoning on which that opinion was based, I prefer to follow it rather than
the contrary view expressed in the Scottish case of Thistle Foundation v
Assessor for Edinburgh 1963 SC 73 by Lord Patrick at page 79 and by Lord
Kilbrandon at page 83. I accept the proposition that a part can only attract
relief if it is such as to be severable or separately lettable. I think the two
rooms were separately lettable. It is not very likely that a tenant would be
found for them, but it is conceivable that, say, the tenant of another flat in
the building might take a tenancy of these two rooms. The central heating, on
the other hand, is something which I should regard as neither severable nor
separately lettable, and therefore as incapable of being the subject of relief.
My conclusion, however, is that the ratepayer is entitled, in respect of the
periods covered by both his proposals, to relief to the extent of the agreed
figure for the flat as a whole under paragraph (b) of section 45, and this
being the same conclusion as the Lands Tribunal reached, I would dismiss the
appeal.
LAWTON LJ: In
1947 the ratepayer, then in his teens, was struck down by poliomyelitis and
left gravely paralysed in both legs and his left arm. He was doomed to spend
the rest of his life whilst awake in a wheelchair and to be dependent upon
others for most of his needs. To his friends it must have seemed probable that
he would have to live in an institution and be supported out of public funds.
Mr Vandyk had other ideas. He completed his education, qualified as a
solicitor, married, begat a daughter and is now employed as the editor of the Solicitors’
Journal. Far from being dependent upon public funds, through the income tax
he pays he helps to support others who have not been able to overcome their
disabilities as he has done. Understandably, having done so much to relieve
public funds from the burden of supporting him, he wants to get any relief from
the burden of taxation, whether central or local, which he can. He claims that he
can get some rating relief because of the provisions of section 45 (d) of the
General Rate Act 1967. In its broad terms, his case is this. If he had not made
the effort he has to overcome his disabilities, a local health authority, or a
voluntary organisation, would have had to look after him in an institution.
Such a place would have attracted rating relief under section 45, paragraph (b)
or (c). He has provided for himself in his flat the accommodation and
facilities with which a local health authority or a voluntary organisation
would have provided him. Why then, he argues, should not his flat attract
rating relief just as would the premises of a local health authority or a
voluntary organisation? He submits that
section 45, when rightly construed, puts his flat on the same basis for rating
relief as an institution.
Paragraphs
(a), (b) and (c) of section 45 have been considered by the House of Lords in Almond
v Birmingham Royal Institution for the Blind [1968] AC 37. The word
‘structure’ in those paragraphs is to be construed as including all kinds of
buildings, whether permanent or impermanent and whether or not annexed to a
main building, and ‘supplied’ is to be read as ‘provided.’ These words would necessarily have the same
meanings in paragraph (d). The phrase ‘of a kind similar to’ in paragraph (d)
has been construed by this court as meaning ‘similar in the purpose for which
it was used’: see Walker v Wood [1962] 1 WLR 1060. Mr Vandyk’s
flat is a structure for the purposes of section 45. In it he receives
‘after-care’ within the meaning of section 28 (1) of the National Health
Service Act 1946 and section 12 (1) of the Health Services and Public Health
Act 1968; this was accepted by the valuation officer. It follows that the flat,
or parts of it if not the whole, is used for a purpose or function similar to
that of the part of any institution in which Mr Vandyk would have been
accommodated had he not been able to make provision for himself. An
institution, however, would not attract rating relief under paragraph (b)
unless its ‘structure’ had been ‘supplied for the use of any person in
pursuance of arrangements made under . . . section 28 (1).’ Paragraph (c) is in similar terms, save that
the relevant statute is section 29 of the National Assistance Act 1948, with
which local authorities, not local health authorities, are concerned. The
following questions require an answer: (1) could either a local health
authority, or a local authority, have provided a flat, or a part of a flat, for
Mr Vandyk under one or other or both of the two specified statutes; (2) even if
they could, would they have done so; (3) if they could, but would not have done
so, does that affect the operation of paragraph (d); and (4) has Mr Vandyk
provided himself with a flat for any of the purposes for which a local health
authority, or a local authority, could, or would, have done so?
The long title
of the National Health Service Act 1946 is as follows:
‘An Act to
provide for the establishment of a comprehensive health service for England and
Wales and for purposes connected therewith.’
Section 1 (1)
imposed on the Minister of Health the duty
‘To promote
the establishment of a comprehensive health service designed to secure
improvement in the physical and mental health of the people of England and
Wales and the prevention, diagnosis and treatment of illness, and for that
purpose to provide or secure the effective provision of services in accordance
with the following provisions of this Act.’
The
comprehensive health service which the Minister was charged to establish would
be one which could, and would, deal with every aspect of health. The
unchallenged evidence in this case proved that sufferers from the after-effects
of poliomyelitis, who were paralysed to the extent Mr Vandyk is, would require
to be accommodated in premises in which there were no steps and a wheelchair
could be moved easily. Personal attention was essential. The advantages to such
a sufferer of living outside an institution were very great in terms of
happiness and psychological adjustment. If the provision of residential
accommodation outside an institution could ‘secure improvement in the physical
and mental health’ of a patient, then, in my judgment, such provision could
form part of a comprehensive health service, unless there were other sections
in the Act showing that Parliament had not intended anything of the kind. Part
II of the Act relates to ‘Hospital and Specialised Services.’ In relation to hospitals the Act distinguishes
between ‘accommodation’
a service: see section 3 (2).
Part III deals
with ‘Health Services provided by Local Health Authorities.’ The duties of local health authorities under
this part of the Act are set out in sections 21 to 28. Section 21 requires
every local health authority to provide, equip and maintain health centres for
specific purposes. This must mean that Parliament intended them to provide
buildings in which patients could be treated. For the purposes of this section,
at any rate, ‘the supply of a structure’ (General Rate Act 1967 language) could
be incidental to ‘the effective provision of services’ (section 1 (1) of the
National Health Service Act 1946 language). Section 22, as amended by the Children’s
Act 1948, must be read as enabling local health authorities to provide
residential accommodation as an aspect of their duty to make arrangements for
the care of expectant and nursing mothers and of children under five: see
section 22 (2) as amended. Then come five sections providing solely for the
provision of services (midwifery, health visiting, home nursing, vaccination
and immunisation and appliances/ambulances). These sections imposed duties on
local health authorities. Section 28 gave local health authorities enabling
powers the use of which was to be subject to the approval of the Minister and
at the same time imposed a duty on them to use these powers to the extent
directed by the Minister. This section has been repealed by the Health Services
and Public Health Act 1968 and replaced by section 12 of that Act; but it has
to be considered in this appeal, because the later Act had not come into
operation at the date of Mr Vandyk’s first proposal. The 1946 Act enabled a
local health authority to ‘make arrangements for the purpose of the prevention
of illness, the care of persons suffering from illness or mental defectiveness
or the after-care of such persons.’ The
words ‘make arrangements’ are wide enough to cover all aspects of after-care.
The only restriction imposed by the Act on a wide construction of these words
is the prohibition against the payment of money to such persons save for very
limited purposes. I can find nothing in section 28 itself which would have
prevented a local health authority from providing residential accommodation in
the form of a flat for an individual as part of a comprehensive health service.
Section 12 (1)
of the 1968 Act gives local health authorities the same general enabling powers
as section 28 (1) of the 1946 Act, subject to one irrelevant restriction, and
then goes on to provide: ‘. . . and in particular, but without prejudice to the
generality of the foregoing provisions, for (a) the provision, equipment and
maintenance of residential accommodation for the . . . after-care of persons
who have been (suffering from illness).’
It was submitted on behalf of the valuation officer that these words
should be construed in a restrictive sense as meaning residential accommodation
in institutions. Two reasons were given for this restricted construction:
first, because the words ‘the provision, equipment and maintenance of
residential accommodation’ are more apt to apply to setting up an institution
than providing a home for someone; and secondly, because the provision of houses
for those in need comes under the housing legislation: see the Housing Act
1957, section 91, and the Chronically Sick and Disabled Persons Act 1970,
section 3. In my judgment, in its context paragraph (a) of section 12 (1)
should be read as applying to institutions rather than homes; but this
paragraph is stated to be without prejudice to the generality of the earlier
part of the section. For the reason I have already given, the general words of
section 12, reproducing as they do section 28 of the 1946 Act, are wide enough
to apply to a flat.
Once Mr Vandyk
shows that a local health authority could provide a flat under section 28 of
the 1946 Act, now section 12 of the 1968 Act, he may not be much concerned to
show that they could also have done so under section 29 of the National
Assistance Act 1948. Nevertheless his submissions on this point must be
considered. The 1948 Act abolished the existing Poor Law, provided a new scheme
for the assistance of persons in need and ‘made further provision for the welfare
of disabled, sick’ and other persons: see the long title. Part III of the Act
dealt with the services to be provided for those within the ambit of the Act.
They fall into two broad categories–the provision of accommodation and the
provision of welfare. Sections 21 to 28 regulated the provision of
accommodation and did so in much detail. Section 29 empowered local authorities
to make arrangements for promoting the welfare of the blind, deaf or dumb and
the substantially and permanently incapacitated by illness and other
disabilities. For the purposes of this Act the enabling powers to provide
welfare do not, in my judgment, include a power to provide accommodation save
to the limited effect specified in section 29 (4) (c). Parliament envisaged
accommodation and welfare as two different services. The power given by
paragraph (c) to provide hostels for a particular purpose cannot be construed
as widening the general words of section 29 (1). It follows that Mr Vandyk’s
local authority could not have provided him with a flat under section 29 of the
1948 Act; they could have done so under section 21, but a flat so provided
would be outside the purview of section 45 of the General Rate Act 1967. For
the purposes of section 45 of the 1967 Act, once a local health authority, or a
local authority, can show that a ‘structure’ coming within paragraphs (b) and
(c) has been supplied in pursuance of arrangements made under the two specified
Acts, rating relief follows. I can see no reason why paragraph (d) should not
be read in the same way. The prerequisite of application under paragraph (d) is
that the ‘structure’ is of ‘a kind similar to structures such as are referred
to in paragraph (a), (b) or (c).’ I can
find no justification in the wording of section 45 for the valuation officer’s
submission that paragraph (d) only operates if the appropriate authority would
have been likely to have supplied a structure under one or other of the two
statutory provisions. If the structure could have been so supplied, then
paragraph (d) applies.
The next
question is whether Mr Vandyk has provided himself with his flat for a purpose
for which a local authority could have provided him with accommodation under
section 28 of the 1946 Act, as re-enacted in section 12 of the 1968 Act. The
valuation officer’s submission was that Mr Vandyk had provided himself with a
home, not with accommodation in which he could have after-care. It was said
that if paragraph (d) applied at all, it could only do so if Mr Vandyk’s sole
or dominant or primary purpose had been the provision for himself
of after-care facilities. In my judgment the use of adjectives like ‘sole’,
‘dominant’ or ‘primary’ is not helpful. The question which should be asked is
this: why did Mr Vandyk provide himself with this flat, being a structure for
the purposes of section 45 of the General Rate Act 1967? On the evidence the answer is clear. He
wanted somewhere to live which was not an institution; and if he was to live
outside an institution his place of abode would have to have certain physical
characteristics, or be capable of being adapted to have those characteristics,
which would enable him to receive after-care, for example, the absence of
steps, doors wide enough to take a wheelchair, wall or ceiling devices to
enable him to move in bed, washbasins at a convenient height, specially adapted
wc seats and reasonable accommodation for his personal attendant, without whose
help he could do very little. In my judgment, accommodation with those physical
characteristics could have been provided by the local health authority. I would
construe section 45 (d) as applying to a structure which had been adapted
physically to enable a ratepayer to receive after-care there. Local health
authorities when exercising their statutory powers must not, however, act
perversely. To do so would be an abuse of power: see Associated Provincial
Picture Houses Ltd v
relief a structure must be of a size and type reasonably suitable for the ratepayer’s
need for after-care. A paraplegic living in a castle could not be given rating
relief for the whole structure, but only for those parts which had been adapted
for his use and the reasonable accommodation of his personal attendant.
If, contrary
to my opinion, rating relief cannot be given in respect of the whole of Mr
Vandyk’s flat, then for the reasons given by Cairns LJ it can be given in
respect of the two rooms which have been adapted, but not for the central
heating. I would dismiss the appeal.
Dissenting,
MACKENNA J said that if Mr Vandyk’s argument based on section 45 (b) was sound,
it seemed to follow that every house or flat in the country where any person
received care or after-care for illness was, as to its structure, exempt from
rates, however large the structure might be and whatever other purposes it
might serve besides the provision of the care or after-care. It could not be
reasonably supposed that this was Parliament’s intention, and if any sensible
meaning could be given to the section which would avoid so extravagant a result
it must surely be preferred. He (his Lordship) was of opinion that nothing less
than a dominant purpose of the supplier of a structure either to prevent
illness or to provide for the care or after-care of persons suffering from
illness would suffice to bring the structure within paragraph (b) as applied by
paragraph (d). Who was the ‘supplier’ of a tenanted flat such as Mr
Vandyk’s? If it was the landlord, his
dominant purpose was the earning of rent. If it was Mr Vandyk himself, his
dominant purpose was to provide a home for himself and his family. Adaptations
made no difference. In the same way, it could not be said that a landlord was
promoting the welfare of a handicapped man within section 29 of the 1948 Act if
what he did was to let him property with the dominant purpose of obtaining a
commercial rent; nor could it be said that the tenant himself was promoting his
own welfare within the meaning of the section by taking a lease with the
dominant purpose of providing a house for himself and his family. Finally, the
same reasons which led him (MacKenna J) to reject the claim for exemption of
the whole flat convinced him that the claim for exemption of some part or parts
was misconceived. He would accordingly have allowed the appeal.
The appeal
was dismissed with costs. Leave was given to appeal to the House of Lords on
terms of an undertaking by the Board of Inland Revenue to bear costs, the
amount for the respondent’s counsel’s fees to be such sum as is considered by
the board to be reasonable or to be taxed if not agreed.