Manchester City Council, R (on the application of) v St Helens Borough Council & Anor

As I said in the first sentence of my judgment in litigation closely related to the appeal now before the court (see [2008] EWCA Civ 931), it is not, in my view, satisfactory when two publicly funded public authorities engage in expensive litigation to decide which of them should pay for the care in the home of a woman whose mental and psychological conditions require constant and expensive care. In the end, the money for the care and the money for the litigation is all coming out of the same purse (see also the judgment of Scott Baker LJ to the same effect in paragraph 39 of the report of that case).

This appeal, with permission of Elias LJ, against the refusal by Dobbs J on 12 December 2008 to give Manchester City Council permission to bring judicial review proceedings, raises a single issue which may be quite shortly stated. I say this having carefully read and considered Mr Knafler’s 34-page closely typed skeleton submission on behalf of the applicant/appellant and having listened to his well structured and well presented oral submissions.

To be fair to Mr Knafler he subdivides the short single issue into three short subdivisions. Since this is, in the first instance, essentially a permission application, this judgment will try to be reasonably short. Dobbs J correctly set herself the same task. Her judgment may be found at [2008] EWHC 3510 Admin and may be referred to as necessary.

The judge set out a summary of the facts as follows in paragraph 3 of her judgment:

“3.

PE is 36 or perhaps now 37 years old and has a multiple personality disorder. She was taken into care. A very high level of care is required because of this condition. The annual figure is substantial making it possibly the most expensive care package in the country. PE’s care arrangements had been funded by St Helens, as PE lived within the borough. In July 1999 PE moved to Manchester. In April 2000 she moved to a property rented in her own name, also in the Manchester area, the lease being taken out in November or December 1999. St Helens carried out an assessment in January 2000, in which it identified the preferred care package as supported living in Manchester. St Helens provided the funding thereafter, although it did seek to persuade Manchester to make housing benefit available to PE, which Manchester declined to do. Accordingly, St Helens met those costs as well.

4.

In September 2005, St Helens issued best interest proceedings in the Family Division of the High Court, declarations were being sought as to PE’s future care. An assessment of need under Section 47 [of the 1990 Act] was undertaken. Experts were instructed and produced reports for the court. Those experts agreed that PE should continue to reside in her current property supported by a package of care. All parties to the proceedings, including the Official Solicitor, agreed that this was the appropriate way forward, namely that PE’s future lay in the Manchester area in her current property. Moreover, PE had indicated that she wished to remain at the current address.

5.

The three experts advised on the need for greater involvement of the services in the Manchester area, which would afford PE the same opportunity as any other Manchester resident. The experts also took the view that it was not in PE’s best interest to retain an ongoing relationship with St Helens. This was explained to Manchester by St Helens in a letter dated 14 September 2006. The view expressed by St Helens was that PE was now “ordinarily resident” in Manchester and that legal responsibility should be passed to Manchester. In the event that Manchester was not willing to accept legal liability, St Helens asked Manchester to manage the case on its behalf. Regular chasing letters were sent by St Helens seeking a reply to that letter of 14 September. Manchester eventually responded by letter dated 27 December 2006, indicating that it would rigorously defend any attempts to pass responsibility to Manchester City Council. It referred to unspecified letters without reference to date, in which it was said that St Helens had confirmed its acceptance of its responsibility for the costs. I have only been able to find one letter in the bundle, which is dated 8 October 2004, in which St Helens, pursuing payment of housing benefit to PE, says:

‘Whilst St Helens Council have accepted that [she] is “Ordinarily Resident” in terms of the National Assistance Act 1948 and do not dispute the support charges consequent to that, the Council do not accept responsibility for the payment of core rent for her residence in Manchester.’

Manchester, in the letter of 27 December 2006, did not accept that PE was ordinarily resident in Manchester for the purposes of the Act. It also declined to assist in the management of the case, citing insufficient resources.

6.

In the light of Manchester’s stated position, St Helens applied to the Secretary of State by virtue of the statutory scheme under Section 32(3) of the 1948 Act for a determination as to whether PE was ordinarily resident in the Manchester area. There was no objection taken to this approach and submissions were made to the Secretary of State by both parties.

7.

On 18 April 2008, the Secretary of State determined that PE had been ordinarily resident in the Manchester area since April 2000. That decision has not been challenged by the claimant or the Official Solicitor. Having read the determination, I am not surprised. In the light of the Secretary of State’s determination, St Helens made the decision to stop providing and funding any care services for PE as of 31 May 2008, and it communicated that decision to Manchester in a letter dated 30 April 2008. Manchester has agreed to make provision for PE in the interim on the basis that St Helens repay the costs if it should have retained responsibility.”

Manchester challenge in these proceedings St Helens’ decision of 30 April 2008 that they would stop funding PE’s care. They were refused permission to bring judicial review proceedings by Mr Robin Purchas QC, sitting as a deputy High Court judge on 20 October 2008. Dobbs J refused them permission after an oral hearing. Manchester had filed their claim a week or ten days outside the three month maximum period for doing so in Civil Procedure Rule 54.5, after the grounds to make the claim first arose. Each of the Administrative Court judges refused to grant the necessary extension of time, holding that there was no good explanation for the failure to comply with the time limit. Manchester appealed against Dobbs’ J decision with the permission of Elias LJ. I propose to address the substance of the matter reasonably briefly first.

Manchester’s essential point is that St Helens assumed a duty to provide PE’s very expensive care package following their assessment on 4 January 2000, at a time when PE was, as the Secretary of State has now determined, ordinarily resident in Manchester; and St Helens are stuck with this unless there has been a relevant change of circumstances, which there has not been. This contention has to be judged with reference to the relevant statutory provisions, which I shall shortly refer to, which bear upon the now unchallenged decision of the Secretary of State that PE is ordinarily resident in the Manchester area and has been since April 2000.

In summary, the Secretary of State found on the basis of expert evidence that, although PE may not have the capacity to make decisions about complex matters relating to the management of her care, it was likely that she did have the capacity to make decisions about where she should live. The Secretary of State found that PE had voluntarily adopted the Manchester area as her home. She therefore became ordinarily resident, either on 21 December 1999 when she signed the tenancy agreement for 272 Kings Road, or when she moved into the property in April 2000. The Secretary of State rejected the submissions of Manchester that St Helens retained responsibility for PE’s care on the basis that it had based PE in the Manchester area. The Secretary of State further rejected the contention that St Helens, having decided to provide care services to PE, was estopped from repudiating responsibility for PE on the basis of its own placement decision. The Secretary of State found that St Helens had made no placement of PE because PE has, or must be treated as having, the capacity to decide where she wishes to live.

Mr Knafler, on behalf of Manchester, says that the Secretary of State’s powers, under Section 32(3) of the 1948 Act, is to determine the question of a person’s ordinary residence and that it does not extend to stipulating the legal and statutory consequences of that decision.

The decision was communicated to the parties on 18 April 2008. As Dobbs J set out, St Helens communicated their decision to stop funding PE’s care on 30 April 2008.

Section 21(1) of the National Assistance Act 1948, which is concerned with the provision of residential accommodation, provides that:

“(1)

Subject to and in accordance with the provisions of this Part of this Act, 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; and

(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.”

Approvals and directions issued by the Secretary of State under Section  21, in annex 1 to LAC (93)10, impose a duty on local authorities to make arrangements for providing residential accommodation under Section 21(1)(a) in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof. However, a merely discretionary power is conferred on local authorities to provide residential accommodation to persons with no settled residence and, to such extent as the authority may consider it desirable, in relation to persons who are ordinarily resident in the area of another local authority with the consent of that other authority. By Section 24(5) of the 1948 Act, a person who is provided with residential accommodation by the local authority of the area in which he is ordinarily resident, but in the area of another local authority, is deemed to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided for him.

One relevance of the Secretary of State’s decision, that PE had voluntarily adopted Manchester as her home and was living in her own chosen accommodation, was that St Helens had not placed her there and her residential accommodation was not provided under Section 21 of the 1948 Act. The care package which supported her was provided under Section 29 of the 1948 Act which provides:

“1)

A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged eighteen or over who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister.”

The Secretary of State has issued two sets of approvals and directions under Section 29(1) of the 1948 Act in LAC 13/74 and in LAC (93)10. The most recent and current version of the approvals appears in Annex 2 to LAC (93)10 and provides:

“(1)

The Secretary of State hereby approves the making by local authorities of arrangements under section 29(1) of the Act for all persons to whom that subsection applies and directs local authorities to make arrangements under section 29(1) of the Act in relation to persons who are ordinarily resident in their area for all or any of the following purposes…”

And a number of purposes are there set out.

Thus, and simply following the Secretary of State’s decision, Manchester has a statutory duty under Section 29 of the 1948 Act to provide PE with the requisite services because she is ordinarily resident in Manchester. St Helens does not have any duty under that Section.

Section 2 of the Chronically Sick and Disabled Persons Act 1970 creates a duty on local authorities having functions under Section 29 of the National Assistance Act 1948 to provide services, including practical assistance in the home, where the local authority are satisfied in the case of any persons to whom that Section applies, who is ordinarily resident in their area, that it is necessary in order to meet the needs of that person for that authority to make arrangements.

Section 32(1) of the 1948 Act relevantly provides that any expenditure which apart from the Section would fall to be borne by a local authority in providing services under Section 29 of the Act for a person ordinarily resident in the area of another local authority shall be recoverable from the other local authority. As has been seen, Section 32(3) provides for questions as to ordinary residence to be determined by the Secretary of State and the Secretary of State has done so in this case.

Miss Richards, on behalf of St Helens, submits that the area in which a person is ordinarily resident is of central importance to the operation of both Section 21 and Section 29 of the 1948 Act, and of related legislation. She shows first that in this respect there is no material difference between Section 21 and Section 29. Lord Lloyd of Berwick said as much in R v Gloucestershire CC ex p Barry [1997] AC 584 at 600 F where he said that:

“…section 21(1) of the 1948 Act was amended. It now provides that local authorities may provide residential accommodation and shall do so if directed by the Secretary of State. [Following amendments] there are now the same powers under Section 21(1) and Section 29(1) of the Act and the same duties if directed by the Secretary of State.”

The same point is made in R v Kensington & Chelsea RLBC ex p Kujtim [1994] 4 All ELR, page 161 at paragraph 27, with reference to the speech of Lord Clyde in Barry at page 609 and also in R (Spink) v Wandsworth LBC [2005] 1 WLR  2884 at paragraph 28.

As to the central importance of ordinary residence, Miss Richards points to the statutory provisions to which I have referred and to the Department of Health’s circular on ordinary residence, LAC (93)7, whose purpose is to:

“clarify, where possible, where responsibility lies between social services authorities”

And she refers to various passages in statutory guidance documents, including a recently published April 2009 draft of guidance and directions intended to replace LAC (93)7, which explains in paragraph 2 that the term “ordinary residence” is a key term for local authorities, as responsibility for the provision of accommodation and community care services under the 1948 Act is largely based on where a person is ordinarily resident.

The Secretary of State’s policy is reflected in a number of published Section 32(3) determinations, including determination 12/2007 where it is stated in paragraph 21 that the local authority responsible for the provision of the services under Section 29 of the 1948 Act will be the one in which the person under consideration is ordinarily resident.

Miss Richards draws our attention to other such determinations, including examples of cases in which a person was held to be ordinarily resident in the area of one local authority when he had been placed there by another local authority. Mr Knafler accepts that in the large majority of cases ordinary residence will be determinative, but not, he submits, always.

I have already noted that Section 29(1) of the 1948 Act has two possibilities, the one conferring a power the other imposing a duty. In R v Berkshire CC ex parte P (1998) 1 CCLR 143. Laws J, as he then was, said:

“s.29(1) confers two distinct functions on local authorities; one permissive, the other mandatory. Within it the duty to make arrangements is confined to cases where the Secretary of State has given a direction relating to persons ordinarily resident in the authority's area. The power to make arrangements is not so confined; it arises where the Secretary of State has given his approval to arrangements being made, and his approval may be given without regard to the place of residence of any potential beneficiary. This is the natural meaning of the subsection.”

So far as may now be ascertained, it appears that when St Helens made their assessment in January 2000, and when the arrangements embodied in it were in place in and from April 2000, no particular thought was given to the question of ordinary residence nor to the precise legal basis on which St Helens were undertaking responsibility for PE’s care. St Helens had historically provided care for PE under various statutory provisions since quite shortly after her birth, and it looks as if it was assumed that that would continue. It certainly appears from correspondence in 2004 that St Helens then understood -- wrongly, as the Secretary of State has now determined -- that PE was then ordinarily resident in St Helens and that may have been the understanding back in 2000.

Miss Richards suggests that clarity, in the matter of ordinary residence, has sharpened in recent years, not least with the recent publication of determinations in that respect by the Secretary of State.

Much has happened on the ground since then, including considerations and determinations of PE’s appropriate care packages, best interest proceedings determined by Mumby J in the Family Division of the High Court, and extended proceedings going to the Court of Appeal between St Helens and Manchester Primary Care Trust to determine whether the Primary Care Trust, rather than the local social services authority, was responsible for PE’s care. Also, of course, importantly, there has been the decision of the Secretary of State as to PE’s ordinary residence, in respect of which St Helens’ contentions went back to their letter of 14 September 2007.

It should be said that PE, by her litigation friend the Official Solicitor, originally aligned herself with Manchester in the present dispute. This appears to have been on the pragmatic basis that Manchester might wish to reduce the scope of the services provided, so that those responsible for PE’s interests reckoned that it would be preferable if the responsibility remained with St Helens. The Official Solicitor has however now changed stance because, as it is put, matters have improved on the ground. The Official Solicitor is now neutral and Mr David Wolfe, who was instructed to represent PE on this appeal, did not participate in the proceedings.

Manchester’s case, as advanced by Mr Knafler in submission, is as follows. He submits that a local authority that undertakes a duty, under the relevant statutory machinery, to provide an individual with specified care services remains under that duty to do so, until there has been a relevant change of circumstances justifying a variation or termination of that duty.He says that in this case, by its assessment of 4^th January 2000, St Helens undertook a duty to provide PE with care services in the Manchester area. That duty, he contends, was expressly undertaken on the basis that it would involve long term provision for PE in the Manchester area, by St Helens. There has been, he submits, no change of circumstances capable of justifying a decision by St Helens to terminate its responsibility towards PE on residence grounds; as envisaged, PE has continued to reside in Manchester. He further submits that, if there had been relevant changes of circumstances, they do not justify the decisions made by St Helens, or warrant the conclusion that objectively PE’s needs call for the provision of services by Manchester and not St Helens.

This case finds expression in grounds of appeal from the judge’s decision to the effect that: she was wrong to conclude that there was a relevant change in circumstances entitling St Helens to consider whether or not it would terminate the provision for PE’s care; the judge was wrong in concluding that it was rational for St Helens to treat itself as no longer under an obligation to provide PE with welfare services, and the judge was wrong in concluding that it was not an abuse of power or otherwise unlawful for St Helens to treat itself as no longer under an obligation to make provision for PE’s care needs. Thus expressed, the grounds do not do full justice to Mr Knafler’s sophisticated main submission.

The judge dealt with changes of circumstance in the following terms in paragraph 40 of her judgment. She said this:

“Dealing with the argument that there needs to be a change of circumstances, whilst I do not decide one way or the other whether this is a valid argument, I take the view that there were two relevant incidents. Firstly, the ‘best interests’ hearing which, from the evidence on assessment, showed that a) Manchester was to be the place of residence for PE for the foreseeable future; b) that the experts recommended a package of local services; and c) also recommended that St Helens should cease being the provider of services due to the breakdown of the relationship. As was noted in the letter from Manchester’s solicitors to the Official Solicitor dated 29 August 2008, the local authority is under a duty to make periodic assessments. Add to that the decision of the Secretary of State under the statutory scheme; and, in the absence of legal challenge to the decision, there has, in my judgment, been a clear change of circumstances to justify a reconsideration of that position.”

The judge had decided, in short, that the statutory scheme was clear; the decision of the Secretary of State meant that Manchester was under a duty to make arrangements and carry out an assessment of need, which did not necessarily equate with a duty to carry on with the same package. She did not accept a submission based on Section 47 of the National Health Service and Community Care Act 1990, to which I shall come shortly. She did not decide the submission that St Helens could only divest themselves of their assumption of a duty of care in January 2000 if there was a change of circumstances. She took the view that there were two changes of circumstances which she expressed in the passage to which I have just referred. She rejected a contention advanced on behalf of PE by the Official Solicitor that PE had a legitimate expectation that the St Helens package would continue. She rejected a contention that the St Helens decision was irrational or an abuse of power.

Mr Knafler’s principal submission looks at Section 47(1) of the National Health Service and Community Care Act 1990. Section 47(1)(a) imposes a duty on local authorities to carry out an assessment of a person’s need for community care services. By Section 47(1)(b) the local authority, having regard to the results of the assessment, has to decide whether the person’s needs call for provision by them of such services.

By Section 46(3) of the 1990 Act, community care services in this statute means services which a local authority may provide or arrange to provide under Part III of the 1948 Act among others. It appears that the threshold for the operation of Section 47(1) is quite low so that local authorities may be under a statutory obligation even if they may not in the end be under an obligation to provide care services. The assessment may result in a determination that the person does not need services; it may result in a determination by the local authority making the assessment that the person’s needs do not call for the provision of services by them, see Section 47(1)(b).

There may still be an obligation to make an assessment of whatever length and complexity the particular situation may require, which might in some instances be not great. The operation of Section 47(1) in this respect is illustrated by the decision of Laws J in the Berkshire case. There was there a dispute about whether a person in need of care was ordinarily resident in Berkshire. The issue was whether Berkshire were obliged to assess the person for care services, irrespective of, among other things, his ordinary residence. Laws J held that the Section 47(1) duty to make an assessment arises whenever the local authority possesses the legal power to provide, or arrange for the provision of, community care services to a person appearing to be in need of such services. This was not conditional upon whether the person was ordinarily resident in the local authority’s area. Laws J had explained, as I have shown, that there is a power under Section 29 to provide services even when a person’s ordinary residence may not give rise to a duty.

Mr Knafler submits that, ultimately, a local authority may come to owe a duty to provide a particular individual with welfare services. However, he submits that that duty is not created by Section 29 of the 1940 Act nor by Section 47 of the 1990 Act. It is created, he submits, by the local authority’s own decision, pursuant to this statutory machinery, that a particular person’s needs call for the provision of identified services by them; thus the nature of the duty is that it is a duty enforceable in public law.

The structure of Mr Knafler’s submission is as follows. He says that Section 29 of the 1948 Act does not impose any duty owed to individuals. It is a general duty to make arrangements for promoting the welfare of persons to whom the Section applies. He points to the speech of Lord Clyde in Barry at page 609 H, where Lord Clyde draws something of a contrast between the power in Section 29(1) of the 1948 Act, which might be a duty by virtue of an appropriate direction to make welfare arrangements, with the particular duty under Section 2 1 of the Chronically Sick and Disabled Persons Act 1970. Mr Knafler then refers to the judgment of Sedley J, as he then was, in R v Islington LBC ex parte Rixon [1997] 81 CCLR 119, where Sedley J characterised Section 2(1) of the 1970 Act as creating a duty owed to an individual, not simply a target duty (see page 123 E). He described Section 29(1) of the 1948 Act as embracing a parallel set of target duties (page 125 B), developing into the requirement to make arrangements when the individual’s needs have been assessed. He had also said (page 124 G) that Section 29(1) operates in tandem with Section 2(1) of the 1970 Act. Not only does the latter trigger a duty to exercise the former; the former contains its own trigger provision, in the form of any direction given by the Secretary of State, the effect of which is to make mandatory what is otherwise discretionary under the Section.

Mr Knafler submits that, Section 21 of the 1970 Act apart, there was, before the 1990 Act which came into force in 1993, little statutory definition of duties owed to individuals. He says that the 1990 legislation changed the landscape. The position, he says, now is that Section 29(1) embraces a target or general duty unenforceable by individuals. The general duty is converted into a duty owed to individuals by the making of an assessment and the implementation of the arrangements assessed under Section 47(1) of the 1990 Act. Until then the individual’s only entitlement is to a rational decision. The duty, when it arises, is a public law duty deriving from the assessment, not a statutory duty. Mr Knafler submits that it would be inconsistent with this statutory scheme, and, if it is necessary to go further, with rational decision-making, if a local authority that has undertaken a duty to provide a person with care services on a long-term basis in the area of another local authority was entitled to terminate its provision of the care services on the basis that the person was resident in the area of the other local authority, and was therefore the responsibility of the second local authority. Whether the local authority terminated provision of care services the day after setting up the arrangements, a few months or weeks later, or years later, makes no difference.

Mr Knafler then submits, I think, that the Secretary of State’s determination imposes no duty on Manchester. Consistently with his main submission, he would say that Manchester may have a duty to make a Section 47(1) assessment; however, they may legitimately decide in that assessment that PE’s needs do not call for the provision by them of services because St Helens has a duty to provide those services, as he submits.

He then goes on to submit that there has been no relevant change in PE’s or St Helens’ circumstances that justify St Helens’ termination of duty towards PE on the grounds of her residence in Manchester. PE lived in the Manchester area at the time of the assessment on 4 January 2000. The assessment expressly envisaged that she would continue to live in Manchester long-term, receiving services from St Helens under the care plan. She continues to live in Manchester as envisaged, and indeed as provided for by the care plan. The determination of the Secretary of State, that PE has been ordinarily resident in Manchester since April 2000, is not a relevant change of circumstances capable of justifying a decision to terminate the provision but a determination as to what the relevant circumstances have been. Nor, he submits, was expert evidence in the best interest proceedings, to the effect that St Helens should cease to be provider of services, of any consequence.

His further submission is that the notion that a local authority remains under a public law duty to provide care services that it has assessed a person as needed to be provided with, and that it has decided to be provided by them, until there has been a relevant change of circumstance justifying a different course, is consistent with ordinarily public law principles. Formal decisions by a competent public authority affecting private rights should be regarded as binding on other authorities, he submits, until circumstances change so as to undermine the original decision. He contends that St Helens in effect promised to provide PE with supported living in the Manchester area on a long-term basis. He submits that this promise was consistent with their powers, that it was reasonable for PE and Manchester to rely on that promise, and there has been no relevant change.

He refers to the Kujtim decision to the effect that, once a local authority has assessed an applicant’s needs as in this case satisfying the criteria laid down in Section 21(1)(a), the local authority is under a duty to provide accommodation on a continuing basis, so long as the need of the applicant remains as originally assessed. In my view, neither Kujtim nor R(J) v Southend Borough Council [2005] EWHC 3457 nor R v Birmingham City Council ex parte Killigrew [2003] CCLR 109, to which Mr Knafler refers, support the argument, because they do not concern situations where the service user has been found to be ordinarily resident in the area of another local authority. They were cases where the local authority owed the service user a duty underlying this legislation, for example in Kujtim under Section 21(1) of the 1948 Act.

As to whether there has been a sufficient change, Mr Knafler adverts to legitimate expectation, but those representing PE are not here to promote such a case on her behalf, and Manchester cannot sensibly rely on any such expectations on their own account. Mr Knafler submits that St Helens’ decision may be regarded as perverse, because no reasonable view could be taken that any changes justify the decision to stop funding PE’s care. Mr Knafler also attempted in writing to promote, but did not press orally, the fanciful idea that the court may be concerned with two decision makers, not one; St Helens’ decision on the one hand and whatever decision Manchester might make on the other. This is misdirected in my view, because the court is concerned, and concerned only, with whether St Helens decision was legitimate or otherwise amenable to judicial review.

Mr Knafler submits that Manchester are prejudiced because they were not involved in the decisions about PE’s care plan from 2000, when PE was ordinarily resident in Manchester, and they are now in danger of being saddled with a disproportionately expensive care plan which they might find difficult to reduce in scope.

There was a body of evidence before the court on this topic. St Helens’ evidence was to the effect that there was no realistic choice but to put in place in 2000 a care plan of the kind and scope which they did. Manchester’s evidence was to the effect that had they been making the assessment in 1990, they would have put in place a different and much less expensive plan. St Helens case includes that Manchester have consistently over the years refused to become involved with PE and her problems to the point where they have failed over nine years or so even to determine her entitlement to housing benefit. It is, in my view, no part of this court’s present function to judge whether the existing care plan may properly be regarded as disproportionately expensive. So far as it goes, it seems to me that it is unlikely that it is, or that St Helens undertook an unnecessarily expensive care package in 2000. It certainly is very expensive and Manchester are entitled to say that they were not involved at the time and that it may well have become entrenched. Beyond that, what would have happened if Manchester had been making an assessment in 2000 is, as the judge rightly held, speculative.

Miss Richards submits that the claimant’s case is that a decision by a public body to exercise a statutory power in the present context to provide services effectively converts that exercise of power into a duty. This argument, she says, collapses the highly important distinction between power and duty. She refers to the speech of Lord Nichols in RG v Barnet London Borough Council [2003] UKHL 57 [2004] AC 208 at paragraph 12, where Lord Nichols said:

“The ability of a local authority to decide how its limited resources are best spent in its area is displaced when the authority is discharging a statutory duty as distinct from exercising a power. A local authority is obliged to comply with a statutory duty regardless of whether, left to itself, it would prefer to spend its money on some other purpose.”

Miss Richards submits that the proposition that no duty is created by Section 29 of the 1948 Act is wrong and that case law establishes the contrary both in relation to Section 21 and Section 29. She refers to the judgment of Potter LJ in Kujtim at paragraph 26, where he said:

“Circular number LAC (93)10 directs local authorities to make the relevant arrangements under Section 21(1)(a) and thus creates a duty in that respect.”

Potter LJ went on to say in paragraph 27:

“In this connection it is pertinent to note that in Ex p Barry […] Lord Clyde at page 609 did not doubt that:

‘While s.29(1) of the 1948 Act gave the local authority a power to make welfare arrangements with the persons described, [it was] a power which they might have a duty to perform by virtue of an appropriate direction under s. 29(2) ...’

Section 29(2), like Section 29(1), was a provision that, in relation to persons ordinarily resident in its area, the local authority shall ‘to the extent as the Minister may direct, be under a duty to exercise their powers under this section’.”

R(G) v Barnet London Borough Council was concerned that Section 17(1) of the Children Act 1989 and the nature of the duty which it imposes on local authorities. In paragraph 90 of his judgment Lord Hope contrasted Section 17(1) of the 1989 Act and Section 21(1) of the 1948 Act, saying as follows:

“where (as in Ex p Kujtim) the Secretary of State has given mandatory directions under section 21(1), it is difficult to see how this provision can be read otherwise than as imposing a concrete duty on the authority to see to it that accommodation is provided for persons assessed as falling within one or other of the classes specified.”

Lord Scott in G said at paragraph 134:

“R v Kensington and Chelsea Royal London Borough Council Ex parte Kujtim […] was a decision of the Court of Appeal concerning the effect of Section 21(1) of the National Assistance Act 1948, as amended. The court concluded that section 21(1)(a) of the 1948 Act, coupled with paragraph 2 of the Secretary of State’s Approvals and Directions made under section 21(1), imposed a continuing duty on the respondent council to meet the appellant’s assessed need for accommodation but that, in the circumstances, the council had discharge its duty. I do not think this case is of assistance to the claimants. Section 21(1), as amended, said that:

‘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 to persons [in certain circumstances]….’

[…] A person able to bring himself within the specified category was plainly, in my opinion, owed a statutory duty. There is no equivalent in the present case to the statutory direction given by the Secretary of State under which the specific duty owed to Mr Kujtim arose.”

See further the judgment of Newman J in R (J) v Southend on Sea Borough Council [2005] EWHC 345 7 Admin at paragraph 43(1).

In the present case, Miss Richards submits that the defendant was not under a duty to continue to make arrangements for PE because the duty to make those arrangements applies only to those who are ordinarily resident in the local authority’s area. By contrast, as the statutory framework in the case law makes it clear, the claimant is under a duty to make arrangements for PE as she has been found to be ordinarily resident in its area.

The second part of that submission is, in my judgment, unquestionably correct. The purpose of the Secretary of State’s decision as to ordinary residence was to determine on which authority the statutory duty lay. As to Section 47(1) of the 1990 Act, as Miss Richards submits, that Section does not itself contain any power, still less impose any duty to provide services. The power or duty to make provision derives, in the case of residential accommodation and welfare services, from Part 3 of the 1948 Act. This, she submits, is evident from the statutes themselves, which is confirmed by the Court of Appeal decision in Kujtim at paragraph 20, where Potter LJ said:

“Section 47(1)(b) created a specific statutory mechanism for assessing social need and was not, in my view. designed to modify the distinct powers and duties under the earlier legislation referred to in s.46(3). I consider that the wording of s.47(1)(b) is designed simply to reflect and accommodate the fact that local authorities enjoy a variety of powers and duties as a result of the provision of various statutes which together comprise the community care services for which they are responsible.”

In my judgment, Miss Richards’ submissions as to the structure of the legislation and the powers and duties deriving from it are correct. Section 29(1) of the 1948 Act, and the Secretary of State’s directions, impose a statutory duty on local authorities to provide community care services for a person who is ordinarily resident in their area and whom they assess to be in need of community care services. They have a power to provide such services, so assessed, for a person who is not ordinarily resident in their area if their assessment is that the person’s needs call for the provision by them of such services. The exercise of that power does not give rise to a duty of the kind for which Mr Knafler contends. The provision of community care services in those circumstances is properly, in my view, to be seen as the exercise of a power, not a duty, from which it is open to the local authority exercising the power to withdraw, subject to normal considerations of rationality, abuse of power or legitimate expectation.

There would, for instance, need to be appropriate transitional arrangements. My rejection of Mr Knafler’s submission as to a duty arising from the exercise of the power removes the necessary support for his main argument which, in my judgment, fails. I do not accept his submission that this analysis stands the legislation on its head; it should not, for instance, lead to local authorities dumping difficult community care cases into the area of other authorities, since to do that for that reason would, depending of course on all the circumstances, amount to an abuse.

There is no suggestion in the present case that St Helens were acting other than in good faith in 2000. On the contrary, it seems to me that Mr Knafler’s structure would tend to breed confusion and dispute because it would blur the policy of ordinary residence as the normal determinant of responsibility.

St Helens do not, therefore, have to establish a change of circumstance in the context of the existence of a public law duty. They do have to show that they acted rationally and without abuse. As Miss Richards showed, The Queen v Cardiff City Council ex parte Sears was decided on Wednesbury principles. She submits that no relevant other principle of general application should be derived from that decision, which she characterises as a first instance extemporary judgment given within a particular statutory context relating to planning and highway decisions and one which now sits uneasily with the subsequent development of legitimate expectation doctrine. But, she submits, even assuming, for the sake of argument, that there is some form of general requirement for a change of circumstance, that change of circumstance can clearly be identified. The Secretary of State has determined that PE is ordinarily resident in Manchester, a fact which had hitherto not been established. The suggestion that a local authority is not entitled to revisit a decision to provide services in the light of the fact that it has been established that the service user, in his ordinary residence elsewhere, is, she submits, quite absurd; and the distinction that the claimant attempts to draw between a relevant change of circumstances and a determination of what the relevant circumstances have been is, to use her expression, reminiscent of angels dancing on pinheads. I would content myself with saying that the Secretary of State’s determination provides an entirely rational basis for St Helens’ decision.

Any claim that the claimant has a legitimate expectation is, submits Miss Richards, unsustainable and Mr Knafler did not press such a submission. No claim for legitimate expectation is now advanced by PE who now adopts a neutral stance in these proceedings. Miss Richards refers to the judgment of Laws LJ in R (Bhatt Murphy) & Others v The Independent Assessors [2008] EWCA Civ 755 as providing a summary of the principles underpinning the doctrine of legitimate expectation. At paragraph 41 Laws LJ emphasised the exceptional nature of legitimate expectation cases. Substantive legitimate expectation is considered further at paragraph 43, where Laws LJ said:

“Authority shows that where a substantive expectation is to run the promise or practice which is its genesis is not merely a reflection of the ordinary fact (as I have put it) that a policy with no terminal date or terminating effect will continue in effect until rational grounds for its cessation arise. Rather it must constitute a specific undertaking, directed at a particular individual or group, by which the relevant policy’s continuance is assured.”

He referred to two examples in the case law, the case of Khan and Coughlan; he added that:

“These cases illustrate the pressing and focussed nature of the kind of assurance required if a substantive legitimate expectation is to be upheld and enforced.”

And in paragraph 49 he said:

“Where there has been no assurance either of consultation (the paradigm case of procedural expectation) or as to the continuance of a policy (substantive expectation), there will generally be nothing in the case save a decision by the authority in question to change in its approach to one or more of its functions. And generally, there can be no objection to that, for it involves no abuse of power. Here is Lord Woolf again in Ex part Coughlan (paragraph 66):

‘In the ordinary case there is no space for intervention on grounds of abusive power once a rational decision directed to a proper purpose has been reached by lawful process’.”

He dismissed the appellant’s appeal in that case, saying at paragraph 63 that the appellant’s factual expectation that the scheme would continue in effect until rational grounds for its cessation arose was categorically inadequate to generate a legitimate expectation which the courts would enforce.

Miss Richards submits that, likewise in the present case, any factual expectation that the claimant or PE might have that St Helens would continue to provide services was demonstrably inadequate to generate a legitimate expectation. There was here no pressing or focussed assurance of the kind required to found a legitimate expectation claim. Having regard to the analysis of the doctrine of legitimate expectation in the judgment of the Court of Appeal, it is plain, she submits, that the fact that the defendant funded the provision of care services to PE over a significant period of time does not generate any substantive legitimate expectation, enforceable by the claimant, that such funding would continue indefinitely. Nor can the claimant have any legitimate expectation that St Helens would continue to fund a care package in circumstances where the Secretary of State has determined that PE is ordinarily resident in Manchester.

I agree with that submission. I also agree that the decision of the Secretary of State that PE is ordinarily resident in Manchester, and not in St Helens, provides an entirely rational basis for the defendant’s decision and would provide ample reason to justify a change.

The position therefore, in my judgment, in brief is as follows. By virtue of the Secretary of State’s decision that PE is ordinarily resident in Manchester, Manchester are under a statutory duty under Section 29 of the 1948 Act to make provision for her care. That duty is not negated because, between January 2000 and April 2008, St Helens undertook responsibility for her care under protest for part of the time vis-à-vis the primary care trust, undertaking it on an ambiguous legal basis, but attributable, it may be, to a power, but not a duty as things have turned out, under Section 29. The decision of the Secretary of State clarified a disputed and not entirely clear situation. There is no legal principle entitling Manchester to avoid its duty to PE because St Helens undertook her care at an earlier stage. If, in other circumstances, PE herself might possibly have argued that St Helens had some duty not to stop providing for her care, that argument would have failed in the present case because the Secretary of State’s decision provided an adequate, ample and rational reason for St Helens to decide to stop funding her care. An equivalent argument by Manchester on their own account is even less persuasive; arguments based on legitimate expectation fail comprehensively because St Helens gave Manchester no pressing or focussed assurance, and because it would be based on nothing more than a retrospective factual expectation that St Helens would continue to fund PE’s care.

In my judgment, therefore, Dobbs J came to the right conclusion on the substantive question, for the reasons she gave.

There remains the matter of extension of time which the judge refused. The parties have spoiled much paper on this subject with ample reference to authority to which it is, in my view, counterproductive to add. The claim was not filed promptly nor within the three months provided by the rule. The overrun was not great, and it is suggested that there was no prejudice. No prejudice, so far as I can see, has been identified. The reason for the lateness was not a good one; the only evidence explaining the failure is brief and only lately provided. An error was apparently made and responsibility for this is unattractively placed on a subordinate in the Manchester City Council’s legal department.

Speaking generally, there are at least three possible judicial approaches. One general approach is that time limits are there to be observed in the public interest and for reasons that go beyond those in an individual case, and that the court should be slow to grant extensions where, as here, there is no good explanation for the failure. Another general approach is that the court should benevolently grant short extensions of time where the delay does not really matter and where there is a real dispute of some importance to the parties which they want decided and upon which they have spent money. Another general approach is to temper the grant or refusal of an extension to the apparent merits of the underlying claim. Which general approach, or what other approach to adopt, depends on the facts and circumstances of each case. In the present case it was, in my view, potentially relevant that the court has already expressed disapproval at the expenditure of large sums of public money in a dispute between two publicly funded authorities about which of them should bear the cost of PE’s care when the money for the care and the money for the litigation is all coming from the same purse.

We are concerned on this appeal in the first instance to review Dobbs J’s decision not to take the initial discretionary decision ourselves. Only if she made an error of principle or reached a plainly wrong decision would this court exercise its own discretion. In my view, Dobbs J’s reasons, which may be found in paragraphs 31 and 32 of her judgment, are careful and full, contain no error of principle, and she was not plainly wrong. I would therefore uphold her decision to refuse an extension of time.

In the result, in my judgment, the appeal fails and the application for permission to bring judicial review proceedings should stand refused.

I agree.

I also agree. I would only add this on the substance of the matter. In principle Manchester is under an obligation to provide services under Section 29(1) of the 1948 Act to PE, on the basis that PE is ordinarily resident in Manchester, that obligation following upon a mandatory assessment under Section 47, the consequences of which are reasonably clear. It seems to me that Manchester could only succeed in this case by showing that St Helens was obliged to continue providing the services needed by PE, and that therefore PE did not need the services to be provided by Manchester. Accordingly, the real issue, as was correctly identified, is as to the lawfulness of St Helens’ decision to withdraw from providing those services, subject of course to notice. The issue as to the lawfulness of that decision has to be tested essentially as between St Helens and PE. Accepting for the purposes of argument that Manchester can take the point even though PE herself does not now do so, I agree for the reasons given by my Lord, on the substance of the matter, that it was open to St Helens to withdraw those services. St Helens was not under a duty to provide those services, but, as it ultimately recognised, provided them under a power to do so, and there was no irrationality or other legal flaw as regards the decision to discontinue providing the services.

That is as regards the substance, but, as my Lord says, I agree that the appropriate course is not to disturb Dobbs’ J principled exercise of her discretion not to grant an extension, with the result that my Lord has indicated.