Buckinghamshire County Council v Royal Borough of Kingston Upon Thames
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 12 July 2010 |
| Neutral Citation | [2010] EWHC 1703 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1873/2010 |
| Date | 12 July 2010 |
[2010] EWHC 1703 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Wyn Williams
Case No: CO/1873/2010
Richard Clayton QC & Mr Jonathan Moffett & Philippa Jackson (instructed by Sharpe Pritchard) for the Claimant
Stephen Knafler QC (instructed by The Legal Services Depart of the Defendant) for the Defendant
Jenni Richards ( instructed by The Official Solicitor) for the First Interested Party
Eleanor Grey (instructed by Trowers & Hamlins LLP) for the Second Interested Party
Jonathan Auburn (instructed by Treasury Solicitors) for the Third Interested Party
Hearing dates: 27 & 28 May 2010
Mr Justice Wyn Williams:
Introduction
SL is a woman aged 35 (her date of birth is 28 October 1974). She came to the United Kingdom in 1988 from Uganda when she was 12 or 13. She suffers from epilepsy and she has learning difficulties.
When SL was still a teenager the Defendant placed her at St Philip's School in Kingston. That is a school which caters for children with learning disabilities. Thereafter, the Defendant placed her at a boarding school known as St Piers College in Lingfield. That establishment is now the National Centre for Young People with epilepsy.
In August 1995, when SL was nearly 21, the Defendant arranged a placement for her at a care home called Stanley Maude House, Chalfont St Peter, Gerards Cross, Buckinghamshire. This accommodation is owned and operated by the Second Interested Party (hereinafter referred to as “NSE”) and it is part of a large centre (hereinafter referred to as “the NSE centre”) at which there are other care homes, a day centre and other facilities for persons suffering with epilepsy and related conditions. The NSE has provided services to persons suffering from epilepsy at this centre since 1894.
When placing SL at Stanley Maude House the Defendant exercised its power under section 21 National Assistance Act 1948 (hereinafter referred to as “the 1948 Act”), as to which see below.
Between August 1995 and a date in 2004 SL lived at Stanley Maude House. On or about 2 June 2004 she moved from Stanley Maude House to another care home at the NSE centre, Hampshire House. That move was considered by the Defendant to be one which would facilitate greater independence on the part of SL.
As was to be expected, the care needs of SL were reviewed periodically by the Defendant. In a witness statement dated 10 May 2010 made by Mr. Glen Mills, the Defendant's Head of Learning Disability Services, he says that there was an annual review. I have no reason to doubt what he says.
On 19 January 2009 an annual review took place. It was attended by SL, her mother, the manager of Hampshire House, 3 officers of the NSE and Ms Sally Treloar, a social worker employed by the Defendant. Ms Treloar, I am satisfied, had a great deal of experience and was very well acquainted with the needs of SL. She made an assessment of the needs of SL and she made a written record of that assessment. In the written record, SL is recorded as saying that she wished to move “into supported living with friends.”
The evidence adduced by Mr. Mills is to the effect that SL had visited a bungalow situated about 2 or 3 miles from the NSE centre about a week before this review meeting took place. She had become excited about a possible move to the bungalow although she was also apprehensive. The suggestion being considered at the review meeting was that SL would move to the bungalow with 2 other persons. Ms Treloar clearly supported such a placement and there is no reason to suppose that anyone at the review meeting opposed the move.
On 5 May 2009 a meeting was convened to discuss “what sort of funding SL needs to move on to the [bungalow].” I deal more fully with one aspect of what was discussed at the meeting later in this judgment.
On 28 September 2009 SL moved from Hampshire House into the bungalow. It is owned by Zetetick Housing (“Zetetick”), a registered charity. SL occupies it under the terms of an assured short hold tenancy.
Following the move from Hampshire House to the bungalow the NSE continued to provide for the care needs of SL through its domiciliary care agency STEPS. Initially, the Defendant funded that care.
By letter dated 10 November 2009 the Defendant wrote to the Claimant in the following terms:-
“I am writing with reference to the above named person, who has been receiving the support of our Learning Disability Service. Whilst this Council has been the responsible authority for this individual in the past, she now lives in a supported, tenancy-based service in your area. Under the Ordinary Residence Guidance, when a person moves into their own home, or takes up a tenancy in a local authority area, they become an ordinary resident of that area.
Therefore, according to the guidance, we believe SL should now become the responsibility of your authority. In order for our Learning Disability team to liaise with yours to transfer SL to your authority, I would propose that the actual transfer of Care Management and funding responsibility happens on January 1 st 2010.
In order to progress this issue, I would be grateful if you could confirm your agreement to the transfer of responsibility, and inform our Head of Learning Disability, Glen Mills, of the relevant individual in your authority for our team to contact….”
On 2 December 2009 the Claimant replied in the following terms:-
“I have received a letter from your Director dated 10 November asking that Buckinghamshire County Council take up the funding and care management responsibility for your client SL from 1 January 2010. We are unable to agree to this request for the following reasons.
I am concerned to note that SL has apparently already moved from residential accommodation to independent living arrangements in Buckinghamshire that involves a tenancy agreement. I refer to the Local Government Circular LAC(93)7 which sets out the law in relation to ordinary residents, in relation to adults placed by one local authority in the area of another local authority.
Paragraphs 7 and 8 of LAC(93)7 states;
“7. Where following an assessment, a local authority arranges a placement in a private or voluntary home in another local authority's area or in a home provided by another local authority the placing authority will normally retain for that person the same responsibility that it has for someone living in its own area. The person so placed will not as a general rule become ordinarily resident in the other local authority's area. If subsequently, by private arrangement, the person moves he may, depending on the specific circumstances, become ordinarily resident in the area of the local authority where he has chosen to live.
8. A local authority shall not place a person for which they are financially responsible in accommodation provided by a private proprietor or voluntary organisation without first informing the other authority. They should also ensure that satisfactory arrangements are made before the placement for any necessary support services, such as day care, and for periodic reviews, and that there are clear agreements about the financing of all aspects of the individual's care. The local authority responsible for the placement may negotiate for these services to be provided by the host authority and reimburse the costs. Similarly, except in an emergency situation, no host authority should alter the accommodation or services provided for that person to a significant degree without consulting in advance the responsible authority. It is recognised that there will be some circumstances where an urgent placement is necessary and prior consultation would not be possible. In such cases the necessary consultation shall take place immediately after the placement has been made.”
There has been no prior communication with Buckinghamshire County Council that we are aware of with regard to the arrangements for your client SL, and as such the above Local Authority Guidance has not been complied with. It is vitally important that the actions taken by your authority do not adversely affect the continuity of provision to SL.
We would appreciate knowing from you whether you have ensured that the proposed new placement and tenancy agreement is stable and sustainable and not likely to be subject to housing benefit rent restriction which would place undue financial pressure on SL.
The reason I ask this is because the District Councils in Buckinghamshire are restricting housing benefit and there is then a shortfall in rent. This clearly means that if the client is not able to make their full rent payment then they are in very real danger of eviction. How have you assessed this risk in SL's case?
In order for Buckinghamshire to respond further, copies of the most recent care assessment and care plan and information in relation to the stability and sustainability of the tenancy are essential.”
The Defendant responded by email sent on 15 January 2010. The email provided some information about SL's background and the tenancy; the Defendant also attached two care plans to the email, one of January 2009 the other of November 2009. The email concluded by suggesting that the transfer of funding and responsibility for SL should take place on 1 March 2010....
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