The Western Health and Social Care Trust for Judicial Review v Secretary of State for Health and London Borough of Enfield (Interested Party)
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Judgment Date | 03 August 2018 |
| Neutral Citation | [2018] NIQB 67 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 03 August 2018 |
1
Neutral Citation No: [2018] NIQB 67
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC10701
Delivered: 03/08/18
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
THE WESTERN HEALTH AND SOCIAL CARE TRUST FOR JUDICIAL REVIEW
-v-
SECRETARY OF STATE FOR HEALTH
and
LONDON BOROUGH OF ENFIELD (INTERESTED PARTY)
________
McCLOSKEY J
Preface
This judgment is given in the wake of a hearing conducted on 15 and 28 June 2018,
followed by supplementary written submissions from all three parties completed on
25 July 2018. The Court is grateful to all representatives for the quality of their
arguments and the assistance and co-operation provided generally.
Introduction
[1] The protagonists in these judicial review proceedings are:
(a) the Western Health and Social Care Trust (“the Trust”), the Applicant;
(b) the Secretary of State for Health of England and Wales (“the SoS”), the
Respondent; and
(c) London Borough of Enfield (“Enfield”), qua interested party.
The impugned determination is that of the SoS made on 22 July 2017 and affirmed
on 21 December 2017 to the effect that a lady whom I shall describe as CM (aged 32
years) is “ordinarily resident” in Northern Ireland and has been thus since 2009, with
2
the result that the care management and funding responsibilities for her have fallen
on the Trust, rather than Enfield, since that date. In very brief compass, lying at the
heart of this challenge is a funding dispute between the Trust and Enfield.
Anonymity
[2] I have decided that the lady in question, CM, who suffers from severe
learning and other disabilities, should have the protection of anonymity. This
judgment has been prepared accordingly. It follows that there will be no publication
of the identity of CM or of that of any other person or of any information which
could result in her being identified.
Factual Matrix
[3] The parties’ representatives having co-operated with the court in this discrete
matter, what follows in [4]–[12] is a rehearsal of agreed material facts.
[4] CM is 32 years old and has significant learning disabilities. She suffered a
neurological insult at birth and has required high level care throughout her life. As a
child she was resident with her parents in Enfield.
[5] Between 1991 and 2004 she attended school in Hertfordshire, a 52-week
residential placement for children with epilepsy and associated conditions.
Thereafter she attended a Camphill Community College in Wales until July 2009.
CM then stayed in the family home in Enfield until 18 August 2009 when she moved
to another Camphill facility in Clanabogan (hereinafter “Clanabogan”). While CM’s
parents were actively involved in identifying Clanabogan as a suitable facility, the
final decision for CM to move there was taken by Enfield as the funding body. [I
shall examine this a little more fully infra]. The Trust was not involved in this
decision and has consistently maintained that it played no role in relation to CM’s
relocation and that it has no statutory duties in relation to her care. There is a dispute
about the precise circumstances surrounding CM’s move.
[6] CM’s accommodation at Clanabogan is (and always has been) paid for by
way of housing benefit. At the time of her move, the costs of her social care were
paid for by Enfield. Enfield continued to pay those costs until 1 September 2017, at
which time the Trust began paying them, on a without prejudice basis, given the
SoS’s determination of 27 July 2017.
[7] On 12 August 2009 Enfield, through Ms. Smith, first wrote to the Trust about
this matter. She said that CM and her family had taken the decision to move to
Clanabogan and that she had expressed herself clearly in wishing to live there in her
adult life. Ms. Smith stated that a move there seemed to be ‘both in CM’s best
interests to live near family (in County Cavan) and her preferences in terms of type
of provision’. She said that Enfield had agreed to fund for three months in order to
3
allow for local care management to assess her. She further stated that CM was
moving of her own free will and would have her own tenancy agreement there,
which would make her ordinarily resident in Northern Ireland. There was no reply
to that letter, nor to a further letter from Ms. Smith dated 17 December 2009 nor any
answer to a number of telephone messages she left. There is a dispute as to whether
this correspondence was received by the Trust given that neither letter was
addressed to the Trust.
[8] On 30 March 2010 Rosemary Dunne-Smith for Enfield first wrote to Mr
Maginness, the Trust’s Chief Legal Adviser, asserting that CM had become
ordinarily resident in the Trust’s area. Mr. Maginness replied on 30 April 2010,
denying that the Trust was responsible for funding CM’s placement.
Correspondence continued until 18 May 2010, during which, on 17 May 2010, Ms.
Dunne-Smith said she had been advised by the SoS that there was no process for
determining ordinary residence disputes between English and Northern Irish
authorities.
[9] In October 2010, CM’s parents lodged a complaint with Enfield’s Learning
Disability Team about the manner in which her case had been progressed. On 30
December 2010, their complaint was upheld by Enfield, which continued to pay for
social care at the placement. In a letter dated 14 January 2011, Enfield accepted
financial responsibility for the extant care package. On 12 February 2015 Innes
Deuchars for Enfield wrote to Mr. Maginness putting the Trust on notice that Enfield
would not pay for care beyond 31 March 2015 and asking the Trust to assess CM’s
needs. Mr. Deuchars said that Enfield did not consider she was ordinarily resident
in its area and that it had been using a power to pay for care (for a person not
ordinarily resident in its area) under legislation in force at the time but that it would
not be able to do so when it was superseded by the Care Act 2014 (“the 2014 Act”).
Mr. Maginness replied on 24 March 2015 saying that the Trust did not accept
responsibility for CM’s placement.
[10] There followed further correspondence between the parties. During the
course of that correspondence, CM was assessed by Dr Ryan McHugh, a Consultant
Psychiatrist. Dr McHugh’s report of 4 November 2015 concluded: “[CM] knows no
real understanding of the differences of living in Northern Ireland than England …
she does not have the capacity to make a reasoned and informed judgement with
regards to her place of residence. She will always require 24 hours support and
wider support in making these sort of decisions”.
[11] Enfield conducted a “comprehensive needs assessment” of CM on 25
November 2015. Correspondence between the parties failed to resolve the issue and
the matter was referred to the SoS pursuant to section 40 of the 2014 Act. On 5
February 2016 Mr. Deuchars, with the Trust’s agreement, wrote to the SoS asking
To continue reading
Request your trial