Kent County Council, R (on the application of) v The Secretary of State for Health & Ors

This case concerns the question of which of a number of local authorities should be responsible for funding the residential accommodation of a disabled adult pursuant to section 21 of the National Assistance Act 1948 [‘the 1948 Act’]. In particular, it concerns the proper construction of section 24(5) which deems a person to be ordinarily resident in a local authority area when he is in fact ordinarily resident elsewhere.

By virtue of section 21 of the 1948 Act a qualifying disabled adult is entitled to residential accommodation funded by a local authority. The adult concerned in this case, whose personal position is unaffected by the proceedings, is NA to whom anonymity has been granted. Earlier in his adult life NA had lived both within the London Borough of Sutton (“Sutton”) and the London Borough of Barking and Dagenham (“Barking”). During that time his accommodation was funded variously pursuant to section 21 of the 1948 Act and also by National Health Service Continuing Healthcare Funding. On 18 August 2009 NA moved to residential accommodation at Winchester House in Kent. It was funded by the NHS. However, with effect from 12 February 2010 NHS funding was withdrawn because NA no longer met the criteria for the relevant support. It was in those circumstances that NA became entitled to accommodation pursuant to section 21 of the 1948 Act. He has remained at Winchester House. NA’s circumstances are such that the NHS continues to make a small contribution to the overall cost but that does not affect the issues of statutory construction with which we are concerned. Sutton assumed interim responsibility for meeting the section 21 costs of his accommodation but argued that Barking was liable pursuant to the statutory scheme.

Section 24(1) of the 1948 Act fixes liability to fund the residential accommodation upon the local authority in whose area the person concerned is “ordinarily resident”. No point turns on the meaning of that term in these proceedings. A dispute arose between Sutton and Barking who each considered that, as a result of NA’s movements before he arrived at Winchester House, the other was obliged to provide funding.

The 1948 Act provides a mechanism by which the Secretary of State for Health, the defendant in these proceedings, may resolve any disagreement between local authorities concerning the responsibility for funding. He does so by making a determination pursuant to section 32 (3) of the 1948 Act. Upon considering the material provided by Sutton and Barking, it appeared to the Secretary of State that Kent County Council (“Kent”), the claimant in these proceedings, might be responsible under the 1948 Act to fund NA’s accommodation. That was because at the date on which the NHS ceased to fund it, NA was ordinarily resident in Winchester House in Kent.

It is common ground in these proceedings that NA was ordinarily resident in Kent on 12 February 2010 applying the definition of that term found in Shah v London Borough of Barnet [1983] 2 AC 309 at 343G per Lord Scarman.

The Secretary of State sought representations from Kent. They argued that the deeming provision found in section 24(5) of the 1948 Act operated to fix responsibility for funding onto the local authority within whose area NA was ordinarily resident immediately before he moved to Winchester House in August 2009. Section 24(5) provides:

“(5)

Where a person is provided with residential accommodation under this Part of this Act, he shall be deemed for the purposes of this Act to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided for him.”

The Secretary of State concluded that this deeming provision did not relieve Kent of their funding obligation. That was because NA’s original placement at Winchester House in August 2009 was not made under the 1948 Act. The Secretary of State’s determination was conveyed in a decision letter dated 13 March 2013.

Kent challenges that decision. They sought permission to apply for judicial review of the Secretary of State’s determination. Permission was refused on the papers by Haddon-Cave J and then again by Eder J at an oral hearing in the Administrative Court. Permission was granted on paper in the Court of Appeal with the claim for judicial review to proceed here.

Miss Bretherton, on behalf of Kent, submits that Winchester House was residential accommodation provided for NA from 18 August 2009. The second reference to “residential accommodation provided” within section 24(5) should not be understood as referring to residential accommodation provided under the 1948 Act, by contrast with the first reference. It is not expressly described as such. The words “under this part of this Act” could have been repeated. Instead, it should be construed widely to include residential accommodation provided at public expense, whatever the source of that funding. In those circumstances, if an entitlement to section 21 accommodation arises by virtue of a local authority having to take over funding from another public body that had previously provided accommodation, the deeming provision fixes financial responsibility upon the local authority in which the person was ordinarily resident before he moved into that accommodation.

In a comprehensive written argument filed on behalf of the Secretary of State, supported by Barking and by Sutton, it is submitted that the literal meaning of section 24(5) is clear. The second reference to “residential accommodation” is preceded by the definite article and thus clearly refers to residential accommodation provided under the 1948 Act. It is submitted that Kent’s construction is inconsistent with the purpose of the provision which is to ensure continuity of financial provision whilst a person is provided with section 21 accommodation, even if he is moved across local authority boundaries. It is submitted that Kent’s construction is inconsistent with other provisions in the 1948 Act and also would logically apply were a person to have accommodation provided privately.

Those submissions were accepted by Eder J. In my judgment he was right to do so.

The literal meaning of section 24(5) is clear. The “residential accommodation” with which it is concerned in both references is that provided under the 1948 Act. The use of the definite article (“the”) in the phrase “before the residential accommodation was provided for him” is an explicit reference back to the accommodation provided under the 1948 Act already mentioned in the subsection. In R (London Borough of Greenwich) v Secretary of State for Health [2006] EWHC 2576 (Admin) Charles J had come to the same conclusion albeit as an obiter dictum. In my judgment there is no room for any other interpretation on the language of the subsection. To my mind, there is no basis upon which this straightforward literal interpretation can be displaced. Whilst that is sufficient to dispose of the claim, the other supporting arguments advanced by the Secretary of State are well made.

The purpose of the deeming provision is to provide continuity of financial responsibility whilst a person is being provided with accommodation under section 21 of the 1948 Act. It is not uncommon for those who are eligible for such assistance, for practical reasons or reasons connected with securing their best interests, to be placed outside the area of the local authority with the statutory responsibility. The deeming provision avoids complications arising in connection with funding in those circumstances. It also avoids the possibility of a local authority placing someone outside its own area to ease its financial burdens.

The 1948 Act contains another deeming provision for circumstances in which a person has been in NHS care before accommodation is provided pursuant to section 21. At the time that NA’s entitlement to section 21 accommodation arose (February 2010) section 24(6) of the 1948 Act provided:

“(6)

For the purposes of the provision of residential accommodation under this part of this Act, a patient in a hospital … shall be deemed to be ordinarily resident in the area, if any, in which he was ordinarily resident immediately before he was admitted as a patient to the hospital, whether or not he in fact continues to be ordinarily resident in that area.”

This provision did not assist Kent because Winchester House is not a hospital. Section 24(6) was amended by the Health and Social Care Act 2008, with effect from 19 April 2010. The new provision widened significantly the circumstances in which a person whose accommodation is funded by the NHS will be deemed to be ordinarily resident in the local authority area in which he lived before the NHS provided the accommodation:

“(6)

For the purposes of the provision of residential accommodation under this Part, a patient (“P”) for whom NHS accommodation is provided shall be deemed to be ordinarily resident in the area, if any, in which P was resident before the NHS accommodation was provided for P, whether or not P in fact continues to be ordinarily resident in that area.

(6A) In subsection (6) “NHS accommodation” means –

(a)

accommodation (at a hospital or elsewhere) provided under the National Heath Service Act 2006 or the National Health Service (Wales) Act 2006, …”

The remainder of the section is concerned with accommodation provided under the Mental Health Act.

Had this provision come into force before NA was provided with accommodation pursuant to section 21 of the 1948 Act it would have relieved Kent of its funding obligations and left Sutton and Barking as potential funders. The 1948 Act has made explicit provision for the consequences for ordinary residence when, immediately before accommodation is provided under the 1948 Act, the person concerned has been accommodated by, or at the expense of, the NHS. In that way Parliament has considered (and reconsidered) the circumstances in which the fact of NHS provision of accommodation should affect the funding obligations which attach to local authorities. Miss Bretherton recognised that if the interpretation Kent advances were correct Parliament need not have troubled with this provision. To my mind this illustrates how, quite apart from the literal interpretation, Kent’s argument is inconsistent with the scheme of the 1948 Act.

Finally, whilst Miss Bretherton is no doubt right that accommodation is usually “provided for” those in NA’s position by local authorities or the NHS, there may be circumstances in which accommodation is provided for disabled adults by charities, well-wishers and family members. Kent’s interpretation would bite on those cases just as it would on accommodation provided at public expense. That would, at the least, be anomalous.

For all these reasons, I conclude that both references to residential accommodation in section 24(5) of the 1948 Act are concerned with residential accommodation provided under the relevant part of 1948 Act itself. NA was ordinarily resident in Kent on 12 February 2010. The deeming provision had no effect on that conclusion. I would dismiss the claim.

I agree.

I also agree.