R (on the application of Cornwall Council) v Secretary of State for Health

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Carnwath,Lord Wilson,Lady Hale,Lord Toulson,Lord Hughes
Judgment Date08 Jul 2015
Neutral Citation[2015] UKSC 46

[2015] UKSC 46

THE SUPREME COURT

Trinity Term

On appeal from: [2014] EWCA Civ 12

before

Lady Hale, Deputy President

Lord Wilson

Lord Carnwath

Lord Hughes

Lord Toulson

R (on the application of Cornwall Council)
(Respondent)
and
Secretary of State for Health
(Appellant)
R (on the application of Cornwall Council)
(Respondent)
and
Somerset County Council
(Appellant)

Appellant (Secretary of State for Health)

Clive Sheldon QC Deok-Joo Rhee

(Instructed by Government Legal Department)

Appellant/Intervener (Somerset County Council)

David Fletcher

(Instructed by Somerset County Council Legal Services Department)

Respondent (Cornwall Council)

David Lock QC Charles Banner

(Instructed by Cornwall Council Legal Services)

Intervener (South Gloucestershire Council)

Helen Mountfield QC Sarah Hannett Tamara Jaber

(Instructed by South Gloucestershire Council Legal Services)

Intervener (Wiltshire Council)

Hilton Harrop-Griffiths

(Instructed by Wiltshire Council Legal Services)

Heard on 18 and 19 March 2015

Lord Carnwath

(with whom Lady Hale, Lord Hughes and Lord Toulson agree)

Introduction
1

PH has severe physical and learning disabilities and is without speech. He lacks capacity to decide for himself where to live. Since the age of four he has received accommodation and support at public expense. Until his majority in December 2004, he was living with foster parents in South Gloucestershire. Since then he has lived in two care homes in the Somerset area. There is no dispute about his entitlement to that support, initially under the Children Act 1989, and since his majority under the National Assistance Act 1948. The issue is: which authority should be responsible?

2

This depends, under sections 24(1) and (5) of the 1948 Act, on, where immediately before his placement in Somerset, he was "ordinarily resident". There are three possible contenders: Wiltshire, as the authority for the area where he was living with his family when he first went into care, and which remained responsible for him under the 1948 Act; Cornwall, where his family have lived since 1991; or South Gloucestershire, where he lived with his foster parents from the age of four until his move to Somerset. The Secretary of State, acting under section 32 of the 1948 Act, decided that Cornwall were responsible. In doing so, he followed the approach of his own published guidance on the determination of ordinary residence, which drew on two principal authorities R v Barnet LBC, Ex p Shah [1983] AC 309, and R v Waltham Forest, ( Ex p Vale unreported, 11 February 1985). The latter is the source of what have become known as " Vale tests 1 and 2" (described at paras 45–46 below), the correctness of which is in issue in this appeal.

3

In judicial review proceedings brought by Cornwall, the Secretary of State's decision was upheld in the High Court (Beatson J), but set aside by the Court of Appeal, who held that South Gloucestershire were responsible. The Secretary of State and Somerset have appeals with the permission of this court. The appeals are supported by South Gloucestershire and Wiltshire, but opposed by Cornwall. Cornwall also disputes the Secretary of State's jurisdiction to make the determination. Although none of the other authorities has argued that Wiltshire should be responsible, the court indicated at the beginning of the hearing that this possibility should not be excluded from consideration.

4

It is regrettable that in this way so much public expenditure has been incurred on legal proceedings. However, the amounts involved in caring for PH and others like him are substantial (some £80,000 per year, we were told). The legal issues are of general importance, and far from straightforward.

The legislation
The Children Act 1989 Part III
5

Part III of the 1989 Act imposes duties on local authorities to provide support for children and their families. By section 30(1), nothing in this Part of the 1989 Act "shall affect any duty imposed on a local authority by or under any other enactment". Section 17 is a general duty of authorities to safeguard and promote the welfare of children in need who are in their area. Section 20 deals with provision of accommodation. By section 20(1), every local authority is required to provide accommodation "for any child in need within their area" who appears to them to require accommodation as a result (inter alia) of —

"(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care."

By section 22 the local authority have a duty to promote and safeguard the welfare of a child who is provided with accommodation under section 20 (and is thus "looked after" by them). One of the ways in which the necessary accommodation and maintenance can be provided is by placing the child in foster care (section 22C).

6

Although under the 1989 Act the primary duty lies with the authority in whose area the child happens to be, "ordinary residence" also has a part to play. By section 20(2), where a local authority provides accommodation under subsection (1) for a child who is "ordinarily resident" in the area of another local authority, that other local authority may following notification "take over" the provision of accommodation for the child. Section 29 provides for recoupment of costs. By section 29(7), where a local authority provide accommodation under section 20(1) for a child who, immediately before they began to look after him, was "ordinarily resident" within the area of another local authority, they may recover from that other authority the reasonable expenses of accommodation and maintenance. By section 30(2) any question arising under these provisions as to the ordinary residence of a child is to be determined by agreement between the local authorities or, in default of agreement, by the Secretary of State. By section 105(6):

"In determining the 'ordinary residence' of a child for any purpose of this Act, there shall be disregarded any period in which he lives in any place —

(c) while he is being provided with accommodation by or on behalf of a local authority."

7

Under section 23C the authority's duties to children maintained under the 1989 Act (referred to as "former relevant children") continue to a limited extent after majority, generally until the age of 21 (section 23C(6)). The authority have a continuing duty to provide for such a child various specific forms of support (not relevant in this case) and (by section 23C(4)(c)) "other assistance, to the extent that his welfare requires it …". They should also have prepared a "pathway plan" indicating the support to be provided (sections 22B, 22E).

8

Section 21 of the NAA 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 aged eighteen 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."

By subsection (5) references to accommodation are references to accommodation provided under this and the five next following sections, and include references to board and other services, amenities and requisites provided in connection with the accommodation. By subsection (8):

"Nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made … by or under any enactment not contained in this Part of this Act …"

9

By section 24(1) the duty falls generally on the authority in whose area the person is "ordinarily resident". Section 24(3) enables an authority to provide accommodation to someone urgently in need of it even though not ordinarily resident in the area. By section 24(5):

"Where a person is provided with residential accommodation under this Part of this Act, he shall be deemed for the purposes of this Act to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided for him."

By section 29(1) a local authority may, and shall if directed, make arrangements for promoting the welfare of certain categories of persons "ordinarily resident" in their area, including those who "suffer from mental disorder of any description". Certain specific forms of assistance are described in the section, but without prejudice to the generality of the power. The Secretary of State has made directions (under circular LAC (93)10) which have the general effect of turning these powers into duties, and also sets out in some detail the nature of the arrangements which have to be made.

10

By section 32(3) —

"any question arising under this Part as to a person's ordinary residence shall be determined by the Secretary of State …"

The procedure for such a determination is governed by the Ordinary Residence Disputes (National Assistance Act 1948) Directions 2010 (made under sections 21(1) and 29(1) of the 1948 Act). Article 2 deals with provision of services under Part III pending determination. The dispute must not be allowed to "prevent, delay or otherwise adversely affect" the provision of services; one of the authorities in dispute must provisionally accept responsibility pending determination; and, if they are unable to agree, the local authority in whose area the subject is living must do so. The authority providing provisional service is the "lead local authority" and as such must "identify all the local authorities in dispute and co-ordinate discussions between those authorities in an attempt to resolve the dispute" (article 3(2)).

The Secretary of State's guidance
11

Before turning to the determination in the present case, it is convenient to refer to...

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