R (on the application of Cornwall Council) v Secretary of State for Health (Wiltshire Council and Others, interested parties)

JurisdictionEngland & Wales
JudgeMr Justice Beatson
Judgment Date21 December 2012
Neutral Citation[2012] EWHC 3739 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/6708/2012
Date21 December 2012

[2012] EWHC 3739 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN WALES

(BRISTOL HEARING CENTRE)

Bristol Civil Justice Centre

2 Redcliff Street, Bristol, BS1 3ST

Before:

The Honourable Mr Justice Beatson

Case No: CO/6708/2012

Between:
The Queen on the application of Cornwall Council
Claimant
and
Secretary of State for Health
Defendant
and
(1) Wiltshire Council
(2) South Gloucestershire Council
(3) Somerset County Council
Interested Parties

David Lock QC (instructed by Cornwall Council Legal Department) for the Claimant

Deok-Joo Rhee (instructed by Department of Health Litigation and Employment Division) for the Defendant

Hilton Harrop-Griffiths (instructed by Wiltshire Council Legal Department) for the First Interested Party

Sarah Hannett (instructed by South Gloucestershire Council Legal Department) for the Second Interested Party

David Fletcher (instructed by Somerset County Council Legal Department) for the Third Interested Party

Hearing date: 9 November 2012

Mr Justice Beatson
1

This judicial review, lodged on 27 June 2012 with an application for urgent consideration, concerns PH, a young man born with significant learning and physical disabilities. His eighteenth birthday was on 27 December 2004. It is a case about an important part of the mechanism under the National Assistance Act 1948 ("the 1948 Act") for determining which local authority has to pay for the care which PH undoubtedly needs. It is common ground that: (a) PH lacks capacity to decide where to live, (b) he is in need of care and attention for the purposes of Part III of the 1948 Act, and (c) the local authority in whose area he was "ordinarily resident" at the material time is under a duty to provide that care. It is important to state at the outset that PH has been and is being well cared for and neither he nor his natural parents, who lived in Cornwall at the material time, are parties to these proceedings.

2

Where, as in this case, there is disagreement between local authorities about the "ordinary residence" of a person in need of care, section 32(3) of the 1948 Act provides that the matter "shall be determined by the Secretary of State". On 22 March 2012 the Secretary of State determined that, as at 26 December 2004, PH was ordinarily resident in the area of Cornwall Council. In these proceedings Cornwall challenges that determination. Permission was granted on the papers by Miss McGowan QC on 15 August 2012. On 9 October 2012 these proceedings were transferred to the Administrative Court in Wales for hearing in Bristol.

3

While PH was a child Wiltshire Council provided him with accommodation under section 20 of the Children Act 1989 ("the 1989 Act"). It placed him with foster carers who live in South Gloucestershire. The arrangements for his care since his eighteenth birthday on 27 December 2004 have also been made by Wiltshire Council, first with the same foster carers, and then in two residential homes in Somerset. As a result of those circumstances, Wiltshire Council, South Gloucestershire Council, and Somerset County Council are interested parties in these proceedings. Although it does not directly fall for decision in these proceedings, the underlying and perhaps the ultimate issue is which of the four local authorities has, for the purposes of the 1948 Act, been responsible for PH's care since his eighteenth birthday.

4

The combined effect of sections 21 and 24 of the 1948 Act is that, subject to certain exceptions, the local authority "in whose area the person is ordinarily resident" may make arrangements for providing "residential accommodation for persons 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". The exceptions are (see section 24(3) and (4) set out at [11]) cases of urgent need or where the authority in which the person is ordinarily resident consents. Section 32(1) makes provision for adjustments between the authority providing the accommodation and the authority in which the person receiving the accommodation is ordinarily resident.

5

"Ordinary residence" is not defined in the 1948 Act. The words are simple but the caselaw in this and other contexts shows the meaning of the concept is not and that the determination of ordinary residence is an intensely fact-sensitive process. It will be necessary to consider the approach of the courts and, in particular the decision of the House of Lords in Barnet LBC v Shah [1983] AC 309 and that of Taylor J in R v Waltham Forest LBC, ex p. Vale, 25 February 198 Shah's case is notable for Lord Scarman's definition (at 343) that ordinary residence refers to a person'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". It has been described by one commentator (Bradley, (2007) Solicitors Journal 1146) as "canonical" but it did not consider how the "ordinary residence" of a person who lacks the mental capacity to decide where to live is to be determined.

6

The determination of the "ordinary residence" of a person who lacks the mental capacity to decide where to live was considered in Vale's case. That case has been relied on in two later decisions and has influenced the formulation of the Department of Health's guidance (as to which see [24]) on determining "ordinary residence". Taylor J set out two approaches, which are referred to as "test 1" and "test 2" in the Departmental Guidance. "Test 1" applies where the person is so severely handicapped as to be totally dependent upon a parent or guardian. Taylor J stated that such a person (in that case it was a 28 year old woman) is in the same position as a small child and her ordinary residence is that of her parents or guardian "because that is her base". The second approach, "test 2" considers the question as if the person is of normal mental capacity, taking account of all the facts of the person's case, including physical presence in a particular place and the nature and purpose of that presence as outlined in Shah, but without requiring the person himself or herself to have adopted the residence voluntarily.

7

Disagreement, primarily between Wiltshire Council and Cornwall Council, both before and since PH's eighteenth birthday, led them and South Gloucestershire Council to invoke the procedure under section 32(3) of the 1948 Act. The result is the determination by the Secretary of State which Cornwall Council challenges in these proceedings. Its case is that, although PH's parents lived in Cornwall on the relevant date, PH has never done so. He does not own a property in Cornwall. Nor was there, at the relevant time, any property in Cornwall at which he was able to live other than on a temporary and occasional basis. He visits his natural parents only two or three times a year. For these reasons, Mr Lock QC, on behalf of Cornwall Council, submitted that the Secretary of State erred in finding that PH has been "ordinarily resident in Cornwall since attaining his majority". He also submitted that the Secretary of State erred in concluding that Wiltshire Council had a duty to provide accommodation for PH under the 1948 Act on the day of his eighteenth birthday.

8

The evidence on behalf of the claimant consists of two statements, both dated 1 June 2012, of Karen Jackson, the Group Manager for Cornwall Council's social care, litigation, planning and highways teams, and formerly head of the Council's social services legal team.

9

The remainder of this judgment is arranged as follow. Part II summarises the relevant legislation and the Departmental Directions and Guidance. Part III summarises the facts. Part IV sets out the material parts of the decision, Part V summarises the grounds of Cornwall's challenge, and Part VI contains my analysis and decision. An appendix contains further material from the Departmental Guidance.

II. The legal and regulatory context

(i) The National Assistance Act 1948:

10

I have referred to sections 21, 24 and 32 of the 1948 Act. Section 21 (as amended) provides:

"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 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."

11

Section 24 provides:

"(1) The local authority empowered under this part of the 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—

(b) not being ordinarily resident in the area of the local authority, is in urgent need of residential accommodation under this part of the 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 accommodation for him in any case where the authority would have a duty to provide such accommodation if he were ordinarily resident in their area.

(5) Where a person is provided with residential accommodation under this Part of this Act, he...

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