Ordinary residence – whether duty arose under 21 National Assistance Act 1948 – s 21 a duty of last resort (a pre- Care Act 2014 case)

Friday 10 November 2017

R. (on the application of Barking and Dagenham LBC) v Secretary of State for Health (1) London Borough of Redbridge (2) HR (Interested parties) [2017] EWHC 2449 (Admin),

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R. (on the application of Barking and Dagenham LBC) v Secretary of State for Health (1) London Borough of Redbridge (2) HR (Interested parties) [2017] EWHC 2449 (Admin), Justine Thornton QC,  5 October 2017 

This case was decided on the basis of the legal regime now replaced by the Care Act 2014 (in force since 1 April 2015).

Facts: Barking and Dagenham (“Barking”) applied for judicial review of the Secretary of State's decision that the second interested party (HR) was ordinarily resident in Barking for the purposes of the provision of care services. HR had lived with his parents in the area of the London Borough of Redbridge (the first interested party) (“Redbridge”) until August 2012. HR had autism and a learning disability and required support with everyday living. HR received outreach care at home, with 28 days per year of respite care at accommodation in Barking, all funded by Redbridge under s 29 of the National Assistance Act 1948. In August 2012 his parents determined that they would no longer care for HR at home. HR remained at the Barking accommodation while Redbridge conducted a review. In April 2013 Redbridge concluded that HR should remain at the Barking accommodation under a supported living placement. His rent started to be paid for by Barking, but Barking was not satisfied that HR was ordinarily resident in its area. Barking and Redbridge referred their dispute to the Secretary of State for a determination under s 40 Care Act 2014 as to where HR was ordinarily resident for care purposes. The Secretary of State concluded that he had been resident in Barking since at least June 2013.

The issues before the Court were (a) whether the August 2012 care hiatus meant that HR's needs could only be met by the provision of residential accommodation, triggering a duty on Redbridge to provide it under s 21 National Assistance Act 1948; (b) if the s 21 duty was triggered, whether the deeming provision in s 24(5) of the Act, whereby HR would be deemed resident in Redbridge while Redbridge was responsible for his accommodation, applied for so long as HR received care, or only so long as accommodation was provided.

The court held on refusing the application that it was for a local authority, and not the Secretary of State or the court, to assess the nature of social care needs and the most appropriate arrangements. Before August 2012, HR was ordinarily resident in Redbridge. Redbridge had assessed his needs as capable of being met at that home, with care provided under s 29 National Assistance Act 1948. After August 2012, HR's care continued to be provided by his care provider in accommodation in Barking. The period of care was a temporary period of decision-making when Redbridge held the ring by allowing HR to remain at his respite care and receive continued personal care under s 29 National Assistance Act 1948. The Court held that s 21 National Assistance Act 1948 accommodation was a last resort and the circumstances had not met that last resort stage.

By April 2013, Redbridge decided HR's needs could be met by continued residence at the Barking accommodation and personal care under provided under s 29 of the National Assistance Act 1948. The court determined that where a local authority had unlawfully failed to comply with its statutory duty under s 21 National Assistance Act 1948 a court should proceed as though s 21 arrangements had been in place. Nevertheless, a court should not substitute its own views about HR's care. The court held that the court and the Secretary of State in considering the issue of ordinary residence had to restrict their considerations to unlawfulness. Further the court held that the Secretary of State had applied the correct legal test to conclude Redbridge had arrived at its decision on HR's needs lawfully and rationally. A detailed care management review was produced and there was no error of law in deciding that the services HR required were not linked to his accommodation and were of the nature of care provided under s 29 of the National Assistance Act 1948. Provision of residential care under s 21 was not the only option open to Redbridge, so was not required as a last resort and s 21 was not triggered. The court held that HR had moved to Barking because HR and his parents expressed a wish to do so, not because his care needs had changed.

The court went on to hold that, if it had been necessary to decide, the deeming provision in s 24(5) applied for so long as a person remained in residential accommodation provided under s 21. Therefore, even if the s 21 duty and the deeming provision in s 24(5) had been triggered in August 2012, the deeming provision would have fallen away in April 2013 when Redbridge lawfully formalised the supported living placement for HR under s 29 of National Assistance Act 1948. The Secretary of State's decision that R was ordinarily resident in Barking remained the same.

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