In R (Barking and Dagenham LBC) v SoS for Health (2017) EWHC 2449 (Admin) Barking and Dagenham Council (“Barking”) challenged a decision by the Defendant, the Secretary of State for Health, that the second interested party, HR, was ordinarily resident in its area for the purposes of the provision of care services to him. As a consequence, Barking assumed responsibility for funding HR’s care. Barking contended that HR’s care should be funded by the London Borough of Redbridge, the First Interested Party, the authority for the area where HR grew up and was physically resident until he moved to accommodation in Barking in August 2012.
The central question raised in the proceedings was whether Redbridge came under a duty to provide HR with residential accommodation under Section 21(1)(a) of the National Assistance Act 1948 (“the NAA”) during the period August 2012 to April 2013. If so, Redbridge would remain responsible for HR’s care, by virtue of a deeming provision in Section 24(5) of the NAA whereby HR would be deemed to be resident in Redbridge, despite his physical presence at the accommodation in Barking. It was common ground that HR was a vulnerable adult in need of care and attention by virtue of his mental disabilities.
Justine Thornton QC, sitting as a Deputy High Court Judge, held that the duty under Section 21(1)(a) was not triggered. Describing the legal framework, she said:-
“25. Caselaw has established that the duty to provide accommodation under section 21 NAA is dependent upon three pre conditions being satisfied These are: a) the person concerned must be in need of care and attention; (b) the need for care and attention must arise by reason of age, illness, disability or “other circumstances”; (c) the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21. Normally, a person needing care and attention which could be provided in his own home or in a home provided by the local authority under the housing legislation is not entitled to accommodation under section 21 (Lord Hoffman in R(Westminster) v National Asylum Service [2002] 1 WLR 2956).
- Accommodation under section 21 of the Act is accommodation of last resort when other statutory avenues for providing the requisite care have failed (Wahid v Tower Hamlets [2002] EWCA Civ 287).
- It is for local authorities, not the Court or the Secretary of State, to decide whether a person has a need for care and attention which can only be met by the provision of accommodation under section 21, subject to challenge by way of judicial review (Wahid v Tower Hamlets [2002] EWCA Civ 287).
- The need has to be for care and attention which are not available otherwise than through the provision of accommodation under section 21. The analysis may not be straightforward in every case. The matter is best left to the good judgment and common sense of the local authority and will not normally involve any issue of law requiring the intervention of the Court (Lord Carnwath, obiter, in R(L) v Westminster [2013] 1 WLR 1445).
- If a local authority fails to comply with its statutory duty under section 21 and a court finds that a local authority acted unlawfully in not entering into section 21 arrangements, the deeming provision under section 24(5) will apply and be interpreted on the basis that the section 21 arrangements had actually been put in place by the appropriate local authority (R(Greenwich) v Secretary of State for Health [2006] EWHC 2576 (Admin) Charles J).
- There is no definition of ordinary residence in the NAA. In circumstances where the deeming provision does not apply, and where capacity is not in issue, the question of ordinary residence falls to be determined on the principles laid down in the leading case of R v LB Barnet, ex parte Shah [1983] 2 AC 309. Broadly speaking, a person’s ordinary residence will be his “abode in a particular place … which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being …” (per Lord Scarman at 343). Additional tests may apply where people are not considered to have capacity to make their own decisions about where they wish to live.”
She further said:-
“40. It is for the local authority, not the Secretary of State or the Court, to assess the nature of social care needs and the arrangements by which those needs can most appropriately be provided for. The local authority’s decision is subject to judicial review on the usual grounds (Wahid v Tower Hamlets [2002] EWCA Civ 287). More particularly, the question whether a person’s needs can only be met by the provision of residential accommodation under section 21 of the NAA is best left to the judgement of local authorities and should not usually require the intervention of the Court (Lord Carnwath, obiter, in R(L) v Westminster [2013] 1 WLR 1445).”
“43. … I accept the principle that where a local authority unlawfully fails to comply with its statutory duty under section 21, the Court should proceed on the basis that the section 21 arrangements had actually been put in place (R(Greenwich) v Secretary of State for Health [2006] EWHC 2576 (Admin)). However it is not for the Court to substitute its own views about HR’s care. The Court, and the Secretary of State in making a determination about ordinary residence, must restrict their considerations to matters of unlawfulness. In this context the Secretary of State applied the correct legal test when concluding that Redbridge had arrived at its decision on HR’s needs ‘lawfully and rationally’.”
“53. I have some sympathy for the position Barking finds itself in. As from 1 April 2015, the NAA was replaced by the Care Act 2014. Had HR’s ordinary residence fallen to be determined a few years later under the Care Act 2014 the outcome might have been different. Section 39 of the Care Act has a similar deeming provision to that of section 24(5) of the NAA but the provision extends to a wider array of accommodation, including supported living arrangements of the type put in place for HR in April 2013.”