R (ex parte London Borough of Greenwich) v Secertary of State for Health

JurisdictionEngland & Wales
JudgeMR JUSTICE CHARLES
Judgment Date14 July 2006
Neutral Citation[2006] EWHC 2576 (Admin)
Docket NumberCO/3739/2005
CourtQueen's Bench Division (Administrative Court)
Date14 July 2006

[2006] EWHC 2576 (Admin)

IN THE HIGH COURT OF JUSTICE

THE ADMINISTRATIVE COURT

QUEEN'S BENCH DIVISION

Before:

Mr Justice Charles

CO/3739/2005

The Queen on the Application of the London Borough of Reenwich
(Claimant)
and
Secretary of State for Health
(Defendant)
and
The London Borough of Bexley
(Interested Party)

MS F MORRIS (instructed by the London Borough of Greenwich) appeared on behalf of the CLAIMANT

MR T BULEY [MR G LEWIS] (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT

MR K RUTLEDGE appeared on behalf of the INTERESTED PARTY

MR JUSTICE CHARLES
1

I have before me an application for judicial review issued by Greenwich Council against the Secretary of State for Health relating to a decision or decisions of the Secretary of State made under the National Assistance Act 1948. The decision initially under attack was one made pursuant to a reference under the relevant section. The second decision asserted to be under attack, and added by way of amendment, which was granted by way of consent at the beginning of the hearing, is essentially a refusal to reconsider that earlier decision. I say immediately that counsel for the Secretary of State explained that his understanding of the amendment was that it was not to include an attack on the refusal to review decision. It seems to me that the language of the agreed amendment did include that attack. However, it also seems to me that nothing really turns on the point as I will explain later.

2

Before turning to the statutory provisions I propose very briefly to deal with some of the background facts. The underlying dispute in reality is as to which of Greenwich and Bexley should be funding the residential placement of a Mrs D pursuant to the National Assistance Act 1948.

3

Mrs D is a lady who lived her life in Bexley. She owned a home there. After she moved to a residential care home in Bexley, which she did in May of 2001, her home was sold in June of 2001; the reason for that sale being that under the provisions of the relevant legislation she and her family were responsible for the costs of the residential care home in which she was living.

4

After a time, as a result of Mrs D's behaviour at the residential care home in Bexley where she was placed, complaints were made and the issue that arose was whether or not she could remain at that residential care home. Bexley became involved in that process and indeed, as I understand it, had been involved earlier in respect of the placement of Mrs D and had assisted the family. The undisputed evidence is that the conclusion was reached that it was no longer appropriate for Mrs D to remain at that residential care home and a place had to be found for her elsewhere.

5

Two placements within the borough of Bexley were considered but rejected on grounds of suitability or lack of accommodation. Another home was found which I was told is 100 metres outside the boundary of the borough of Bexley and therefore 100 metres within the boundary of Greenwich. Mrs D moved to that home. At the time she moved it was known to Bexley that she was going to pass through the capital financial limit cap, which was then the sum of £19,000, within four weeks and five days. It was therefore known that by the end of June she was no longer going to be responsible for the payment of the fees of the care home and the situation would change from one in which she and her family were responsible to one in which the payments would be made by the appropriate local authority with appropriate contributions from Mrs D under other provisions of the Act.

6

At this stage I propose to cease giving a brief thumbnail sketch of the background and turn to the relevant statutory provisions. I will return to the factual position later. At this stage I record that an agreed statement of facts was placed before the Secretary of State who, in the determination, also sets out a series of factual findings.

7

So far as the relevant statutory provisions are concerned I start with what was, in my view, correctly described as the overarching provisions contained in the National Health Service and Community Care Health of 1990. Section 46(1)(a) is as follows:

"Each local authority —

(a) shall, within such period after the day appointed for the coming into force of this section as the Secretary of State may direct, prepare and publish a plan for the provision of community care services in their area; …

Section 46(3) reads:

"In this section —

'local authority' means the council of a county, [a county borough,] a metropolitan district or a London Borough or the Common Council of the City of London;

'community care services' means services which a local authority may provide or arrange to be provided under any of the following provisions …"

Section 47 (1) reads:

"Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority —

(a) shall carry out an assessment of his needs for those services; and.

(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."

8

I pause to note that the provisions of that Act contain no reference to the duty arising by reference to the ordinary residence of the relevant member of the public. It was, as I understood it, common ground that it was in the exercise of the duties imposed by section 47 that Bexley had carried out and were carrying out assessments of Mrs D when she moved from the residential care home in Bexley. In this context I was also referred to section 29 of the National Assistance Act 1948.

9

It is to that Act that I now turn. This is the core statute so far as the present proceedings are concerned. Section 21(1)(a) reads:

"Duty of local authorities to provide accommodation

21(1) [Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing] —

(a) residential accommodation for persons [aged 18 or over] who by reason of age, [illness, disability] or any other circumstances are in need of care and attention which is not otherwise available to them …"

10

Section 21(2A) is as follows:

"In determining for the purposes of paragraph (a) or (aa) of subsection (1) of this section whether care and attention are otherwise available to a person, a local authority shall disregard so much of the person's resources as may be specified in, or determined in accordance with, regulations made by the Secretary of State for the purposes of this subsection.

11

I pause at that point to record that the relevant regulations are the National Assistance Assessment of Resources Regulations 1992. The updated version of those Regulations provide as follows:

"No resident shall be assessed as unable to pay for his accommodation at the standard rate if his capital calculated in accordance with regulation 21 exceeds [and then the figures of £20,000 and £21,000 are included in the copy I have] prescribed for the purposes of section 1341 of the Contribution and Benefits Act."

At the relevant time the relevant capital figure was £19,000.

12

I return to section 21 of the 1948 Act:

"21(4) [Subject to the provisions of section 26 of this Act] accommodation provided by a local authority in the exercise of their [functions under this section] shall be provided in premises managed by the authority or, to such extent as may be [determined in accordance with the arrangements] under this section, in such premises managed by another local authority as may be agreed between the two authorities and on such terms, including terms as to the reimbursement of expenditure incurred by the said other authority, as may be so agreed.

(5) References in this Act to accommodation provided under this Part thereof shall be construed as references to accommodation provided in accordance with this and the five next following sections, and as including references to board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary.

22. Charges to be made for accommodation

22(1) [Subject to section 26 of this Act, where a person is provided with accommodation under this Part of this Act the local authority providing the accommodation shall recover from him the amount of the payment which he is liable to make] in accordance with the following provisions of this section.

24. Authority liable for provision of accommodation

24(1) The local authority [empowered] under this Part of this Act to provide residential accommodation for any person shall subject to the following provisions of this Part of this Act be the authority in whose area the person is ordinarily resident.

(3) Where a person in the area of a local authority —

(a) is a person with no settled residence, or

(b) not being ordinarily resident in the area of the local authority, is in urgent need of residential accommodation under this Part of this Act.

the authority shall have the like [power] to provide residential accommodation for him as if he were ordinarily resident in their area.

(4) Subject to and in accordance with the [arrangements] under section 21 of this Act, a local authority shall have power, as respects a person ordinarily resident in the area of another local authority, with the consent of that other authority to provide residential...

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