Petition Of Milton Keynes Council For Judicial Review Of A Decision Dated 26 March 2015 Of The Scottish Ministers Determining The Ordinary Residence Of Mrs Jr
| Jurisdiction | Scotland |
| Judge | Lord Armstrong |
| Neutral Citation | [2015] CSOH 156 |
| Year | 2015 |
| Published date | 17 November 2015 |
| Docket Number | P672/15 |
| Court | Court of Session |
| Date | 17 November 2015 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 156
P672/15
OPINION OF LORD ARMSTRONG
In the Petition of
MILTON KEYNES COUNCIL
Petitioners;
for
Judicial Review of a decision, dated 26 March 2015 of the Scottish Ministers
determining the ordinary residence of Mrs JR
Respondents:
Petitioner: Poole QC; Balfour + Manson LLP
Defender: Ross; Scottish Government Legal Directorate
Interested Party: Komorowski; Allan McDougall
17 November 2015
Introduction
[1] The petitioners are an English local authority. The respondents are the Scottish Ministers. The interested party is East Lothian Council, a Scottish local authority. The case turns on the issue of what is the correct construction to be placed on the term “ordinary residence” for the purposes of section 86 of the Social Work (Scotland) Act 1968 (“the 1968 Act”).
[2] The essence of the decision by the respondents, dated 26 March 2015, (“the Determination”) was that, notwithstanding that Mrs R was living in East Lothian, having previously lived in Milton Keynes, there had been no change of her ordinary residence for the purposes of section 86(1) of the 1968 Act and that, accordingly, for these purposes, she remained ordinarily resident in Milton Keynes. In deciding the matter as they did, the respondents had regard to the decision of the House of Lords in Shah v London Borough of Barnet 1983 2 AC 309 (“Shah”) and to Scottish Government Guidance Circular 3/2010 (“the Scottish Government Circular”).
[3] The petitioners challenge the Determination on five grounds, viz: (1) the respondents applied the wrong legal test; (2) they erred in law by failing to consider the correct periods of residence; (3) they erred in their consideration of what constitutes a voluntary act; (4) perversity; and (5) in reaching their decision, they acted in a manner beyond their jurisdiction.
The facts
[4] There was broad agreement amongst the parties as to the facts. Mrs R was born on 19 March 1932 and is now 83 years of age. She formerly lived in her own home in Milton Keynes, which is within the petitioner’s local authority area. In 2005, she was diagnosed with dementia. On 20 December 2008, following deterioration in her mental and physical health, she was admitted to the Waterhall Care Centre, a specialist older persons assessment unit within the petitioner’s local authority area. By order, dated 7 January 2009, the court of protection, appointed the holder of the office of finance manager of the petitioner as deputy for property and affairs of Mrs R. A mental capacity assessment determined that she lacked the capacity to decide for herself where she should live. Her daughter Ms CP, now CT, decided she would like her mother to reside close to her in the general area of Edinburgh. Ms T identified Adam Wood Care Home in Musselburgh as a suitable home. Adam Wood Care Home is within the local authority area of the interested party. Ms T was advised by the petitioner to approach the interested party about funding because it was of the view that Mrs R might be entitled to free personal and nursing care. On 25 February 2009, Mrs R was discharged from Waterhall Care Centre and was driven by Ms T to Scotland, where she was admitted to Adam Wood Care Home on the same day. Mrs R has lived in Adam Wood Care Home ever since. The interested party had no involvement in the placement of Mrs R in Adam Wood Care Home and nor initially did it make any payments in relation to that. Financial matters were arranged privately between Adam Wood Care Home and Ms T. By order, dated 2 June 2009, taking effect on 2 July 2009, Ms T was appointed deputy for property and affairs of her mother, replacing the holder of the office of finance manager of the petitioner. On 10 July 2009, Mrs R’s needs for community care services were assessed by the interested party in accordance with section 12A of the 1968 Act. The assessment concluded that she was in need of residential accommodation with nursing. Accordingly, the interested party assumed responsibility as “authority of the moment” for the funding of her care placement. The interested party has made payments to Adam Wood Care Home since 8 July 2009. Mrs R’s home in Milton Keynes was sold in 2010.
The applicable legislation
[5] The relevant provisions of the 1968 Act which give rise to the issue between the parties are the following:
Section 12(1):
“It shall be the duty of every local authority to promote social welfare by making available advice, guidance and assistance on such scale as may be appropriate for their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities (including the provision of arranging for the provision of residential and other establishments) as they may consider suitable and adequate ...”;
Section 12(4):
“Assistance given in kind or in cash to or in respect of persons under this section may be given unconditionally or subject to such conditions as to the repayment of the assistance, or of its value, whether in whole or in part, as the local authority may consider reasonable having regard to the means of the person receiving the assistance and to the eligibility of the person for assistance from any other statutory body.”;
Section 12A(1):
“Subject to the provisions of this section, where it appears to a local authority that any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services may be in need of any such services, the authority –
(a) shall make an assessment of the needs of that person for the services; and
(b) shall then decide, having regard to the results of that assessment, ... whether the needs of the person being assessed call for the provision of any such services.”;
Section 86(1):
“Any expenditure which apart from this subsection would fall to be borne by a local authority –
(a) in the provision under this Act ... of accommodation for a person ordinarily resident in the area of another local authority, ... shall be recoverable from the other local authority, and in this subsection any reference to another local authority includes a reference to a local authority in England or Wales”;
Section 86(2):
“Any question arising under this section as to the ordinary residence of a person
shall ... be determined by the Secretary of State, and the Secretary of State
may determine that a person has no ordinary residence.”
Section 86(3):
“In determining for the purposes of subsection (1) of this section the
ordinary residence of any person or child, any period during which he is
provided with accommodation under this Act ... shall be disregarded”.
The relevant case law
[6] In Shah, Lord Scarman in stating that “ordinary residence” is a not a term of art in English law, opined at 340E:
“Two questions of statutory interpretation, therefore, arise. The first is: what is the natural and ordinary meaning of ‘ordinary residence in the United Kingdom’ ? ... The second is: does the statute in the context of the relevant law against the background of which it was enacted or in the circumstances of today ... compel one to substitute a special, and, if so, what, meaning to the words ‘ordinarily resident in the United Kingdom’?.”
He further stated, at 342C-E:
“I agree ... that in their natural and ordinary meaning the words mean ‘that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration.”;
and at 343G:
“Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.”;
and at 344B:
“There are two, and no more than two, respects in which the mind of the ‘propositus’ is important in determining ordinary residence. Residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is. And there must be a degree of settled purpose.”;
and at 345H-346B:
“By giving the words their natural and ordinary meaning one helps to prevent the growth and multiplication of refined and subtle distinctions in the law’s use of common English words. Nothing is more confusing and more likely to bring the statute law into disrepute than a proliferation by judicial interpretation of special meanings, when Parliament has not expressly enacted any.”
and at 349C:
“My Lords, it is, therefore, my view that local education authorities ... must ask themselves the question: has the applicant shown that he has habitually and normally resided in the United Kingdom from choice and for a settled purpose throughout the prescribed period, apart from temporary or occasional absences?”.
[7] In Regina (Cornwall Council) Secretary of State for Health and Another [2015] UKSC 46 (“Cornwell”), Lord Carnwath, when dealing with similar provisions to those of the 1968 Act, applicable in England by virtue of the National Assistance Act 1948, reviewed the authorities on the meaning of “ordinary residence”. Having referred to two earlier decisions of the House of Lords, he stated, at paragraph 41:
“Those authorities were followed in the leading modern authority on the meaning of the expression in a statutory context. That is the speech of Lord Scarman in R v Barnet London Borough Council, ex p Nilish Shah [1983] 2 AC 309.”;
and subsequently, having quoted Lord Scarman, as noted above, he went on to say, at 229 B-C,:
“The ‘mind’ of the subject was relevant in two respects. First the residence must be ‘voluntarily adopted’, rather than for...
To continue reading
Request your trial
-
The Western Health and Social Care Trust for Judicial Review v Secretary of State for Health and London Borough of Enfield (Interested Party)
...placement. [43] Against this conclusion, WHSCT places particular reliance on a Scottish case: Milton Keynes Council v Scottish Ministers [2015) CSOH 156 in which a judge of the Outer House of Session held that a lady with dementia who had been moved by her daughter from England to Scotland ......