Blog post by Tim Baldwin of the Garden Court Chambers Community Care Team.
Lancashire County Council applied for judicial review of Secretary of State's (“SoS”) decision that the first interested party (“JM”) was ordinarily resident within its area.
JM sustained a serious brain injury in a road traffic accident in January 1990. JM was then five years old. JM had been living in accommodation within Lancashire's area, which had been bought with funds from a damages award made in his favour.
JM’s funds were under the control of his property and affairs deputy acting under supervision of the Court of Protection. Lancashire held safeguarding meetings between February 2010 and April 2010 to consider JM's position. However, no community care assessment was undertaken.
In May 2010 JM agreed to move to live at a Transitional Rehabilitation Unit (TRU). This was a privately run facility located within the area of St Helens Council. Subsequently JM moved to a different TRU within that area. A dispute arose between Lancashire and St Helens as to which of them was responsible for funding JM's accommodation at the TRU. The issue was which local authority was to be regarded as the one in whose area JM was ordinarily resident for the purposes of the National Assistance Act 1948.
The relevant provisions were s 47 of the National Health Service and Community Care Act 1990 (“NHS &CC 1990”) and s 24(5) of the National Assistance Act 1948 (“NAA 1948”). The SoS concluded that JM remained ordinarily resident in Lancashire and reasoned that on the basis of the evidence:
(a) the low threshold for carrying out a community care assessment under s 47 NHS & CC 1990 had been met during the safeguarding process in February 2010 to April 2010 held by Lancashire,
(b) Lancashire was therefore under a public law obligation at that time to carry out a community care assessment but did not do so but, on applying R (on the application of Greenwich LBC) v Secretary of State for Health  EWHC 2576 (Admin), Lancashire should be treated for the purposes of invoking the deeming provision in s.24(5) NAA 1948 as having done so;
(c) if Lancashire had carried out a community care assessment, then Lancashire would have found that JM was in need of care and accommodation in a residential setting. Furthermore, that Lancashire would have been bound to find such care was not "otherwise available". The conclusion the SoS reached was that Lancashire would have been required to offer to fund a placement for JM,
(d) the SoS also concluded that if such an offer had been made, JM's deputy was likely to have accepted it. Thus Lancashire would have to arrange or fund JM's placement at the TRU, and
(e) if Lancashire had funded JM's placement, then the deeming provision of s 24(5) NAA 1948 would apply and JM would have remained ordinarily resident in Lancashire's area.
In its claim for judicial reviews, Lancashire submitted that the SoS' conclusion that it should have provided funding for JM's placement was unlawful or irrational. Lancashire argued that the SoS’ conclusion that s 24(5) NAA 1948 applied was not open to the SoS as a matter of law when relevant matters were considered.
The Court’s decision
On refusing the claim for judicial review the court held as follows.
The count held that the application of the principle from R (on the application of Greenwich LBC) v Secretary of State for Health  EWHC 2576 (Admin), included the exercise of considering whether the relevant local authority had a duty to undertake an assessment of need and what the outcome of such an assessment would have been. As a consequence, this would necessarily have involved consideration of the circumstances at the time when it said there should have been an assessment and an analysis of what would or would not and what should or should not have been done and by whom. The court held that without such an analysis it was not possible to know whether accommodation should have been provided and such a determination was the key to the application of the principle from R (on the application of Greenwich LBC) v Secretary of State for Health.
The court went on to hold that the SoS' conclusion that in the early 2010 Lancashire had a duty to undertake an assessment under s 47 NHS & CC Act 1990 was not only a matter of law but also of exercise of judgement as to what should have appeared to Lancashire and as to whether those matters which ought to have caused Lancashire to undertake an assessment of need. In making that judgement, the Court held, the SoS properly has regard to the very low threshold which had to be crossed for undertaking an assessment and to all the circumstances at the time. As such the SoS had been entitled to reach his conclusions on the material before him and there was no error of law in the SoS’ approach or conclusions he reached, in particular that Lancashire had a duty to undertake an assessment of need. As a consequence, the SoS was correct to conclude that the assessment ought to have resulted in a finding of need which was not being met from resources available otherwise than from Lancashire the consequence being that the deeming provision of s 24(5) NAA 1948 came into play thereby placing JM as ordinarily resident in Lancashire’s area.
This is a complex analysis of the facts and decision making by the judge in this case and does illustrate that the Secretary of State’s decision making, in respect of determining ordinary residence can be complex, and also difficult to effectively challenge if it is well reasoned and concerns a proper exercise of judgement.