2013 01 Incapacity

Friday 1 February 2013

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R (Cornwell Council) v Secretary of State for Health and Wiltshire Council, South Gloucestershire Council and Somerset County Council [2012] EWHC 3739 (Admin), Beatson J: PH was a young man with significant learning and physical disabilities. He did not have the capacity to decide for himself where his “ordinary residence” was. The local authorities had referred the determination of where his ordinary residence was, and therefore which local authority should provide s.21 National Assistance Act 1948 care and accommodation, to the Secretary of State. The Secretary of State had determined that PH’s ordinary residence was in Cornwall. PH had lived with his parents until he was five, from the ages of two to five in Wiltshire. When he was five, Wiltshire Council had provided accommodation for him under s.20 Children Act 1989 at the request of his parents. The accommodation had been with foster parents who lived in the South Gloucestershire district. By the time of PH’s eighteenth birthday, he was living with his foster parents in South Gloucestershire. His natural parents and siblings had moved to Cornwall when he was around six and he had visited them there and stayed with them. After his eighteenth birthday, Wiltshire Council had placed him in accommodation in Somerset, but there remained a dispute between local authorities as to which one was responsible and specifically in which district he had been ordinarily resident at the time of his eighteenth birthday. Beatson J, after a comprehensive review of the authorities on “ordinary residence” held that the Secretary of State’s determination was one that was open to him. The question of ordinary residence was one of fact and degree. Although PH had never lived in Cornwall, and therefore could not be said to have been physically present in Cornwall, that was not a factor which should be given primacy. The Secretary of State took into account PH’s relationship with his natural parents, his stays in Cornwall and the fact that contact with his natural parents was regarded as in PH's best interest. His relationship with his foster parents was not of the same quality. In this case, PH’s relationship with his natural parents meant that Cornwall could be regarded as his “base”. Click here for the judgment.

R (Chatting) v (1) Viridian Housing (2) Wandsworth LBC [2012] EWHC 3595 (Admin)(Nicholas Paines QC): A claim for judicial review was brought by an incapacitated elderly lady who had lived for many years in accommodation arranged by the local authority under s 21 National Assistance Act 1948 and provided by the housing association which also provided her care. The housing association sought to transfer her care arrangements to a different provider. Her claims that it was acting in breach of a compromise reached in earlier litigation and in breach of Article 8 were dismissed. She also claimed that the local authority acted unlawfully in failing to act in her best interests when allowing the changed arrangements to go ahead, relying on the 2010 “Prioritising Need” statutory guidance, which requires councils to follow the principles in s 1 MCA 2005. Dismissing the claim, the court held that the fact that she was mentally incapacitated did not mean that the yardstick for all care decisions became the test of “what is in her best interests?”; s 1(5) MCA 2005 came into play in respect of decisions that a person with capacity would make for themselves, whereas the decisions concerned – whether to register the flat as a care home and to agree to the new arrangements - fell to the council to make. Best interests were nevertheless a relevant factor when having regard to a person’s welfare, as required by s 21(2) of the 1948 Act (click here for judgment).

Note: Paragraphs 91 – 100 of the judgment provide a useful explanation of the interface between decision- making under MCA 2005 and public law in the community care context.

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