Worcestershire County Council (R on the application of) v Secretary of State for Health and Social Care

This is another dispute about which of two local authorities should pay for care services, in this case after-care services pursuant to s.117(3) of the Mental Health Act 1983 (“the 1983 Act”). The service user, JG, was detained, released and then, sometime later, detained again under the 1983 Act. The primary issue, as presented both below and on appeal, was where she was “ordinarily resident…immediately before being detained” for the second time, for the purposes of s.117(3)(a) of the 1983 Act. Linden J (“the judge”) concluded, in a painstaking judgment, that the answer was Swindon Borough Council (“Swindon”) because that is where she was living at the time of her second detention. The appellant maintains on appeal that the answer was Worcestershire County Council (“Worcestershire”), the respondent to the appeal, because they had originally placed her in a care home in Swindon. It was accepted that she was ordinarily resident in Worcestershire prior to her first detention.

The argument as to the proper interpretation of “ordinarily resident” was the first of three different ways in which the appellant (with the support of Swindon, the interested party) sought to make Worcestershire liable for JG’s care costs under s.117(3). All three had at their root the argument that Worcestershire owed the original duty to pay for the cost of JG’s care, and could not seek to export that liability to another local authority by moving her to their area. As explained in greater detail below, the second way in which the appellant put that argument before the judge is not pursued on appeal.

However the third way in which liability was said to rest with Worcestershire gives rise to the second ground of appeal. That involved a consideration of when the (agreed) duty owed by Worcestershire at the time of JG’s first detention came to an end (if at all). Worcestershire argued that their duty ceased when JG was detained for the second time. The judge disagreed with that but found, on a basis that had not been argued before him, that Worcestershire’s duty ceased when JG was released from that second period of detention. The appellant appeals against that conclusion.

As became apparent during the hearing of the appeal itself, it seems to me that this second ground of appeal properly arises for consideration first. That is because, if the judge was wrong, then there may be no answer to the appellant’s proposition that the original (agreed) duty owed to JG by Worcestershire never came to an end, no matter what the result of the argument about where JG was “ordinarily resident” at the time of her second detention.

I set out the facts in Section 2 below. I identify (without, I hope, excessive repetition), the salient part of the judge’s judgment in Section 3. I summarise the relevant parts of the legislation and the authorities in Section 4. Thereafter, I deal with the second ground of appeal (the continuing duty issue) in Section 5, and the first ground of appeal (the ‘ordinarily resident’ issue) in Section 6. There is a short summary of my conclusions in Section 7. I am very grateful to both counsel for their clear and fair submissions.

The patient, JG, has a diagnosis of treatment resistant schizoaffective disorder. She became known to Worcestershire in about 2011/2012 when she was living in Evesham in a local authority property. There were issues with both her mental and physical health. She spent time in Newtown Hospital in Worcester. There is no dispute that, in March 2014, she was ordinarily resident in Worcestershire.

On 20 March 2014, JG was detained at Newtown Hospital under s.3 of the 1983 Act. In April 2014, following consultation with JG’s daughter and others involved in JG’s care, it was decided that it was in JG’s best interests for her to move to a residential placement closer to her daughter in Swindon.

On 12 July 2014, JG’s first period of detention came to an end and she was released to a care home in Swindon pursuant to s.117 of the 1983 Act. At this point she was still funded by Worcestershire. On 7 February 2015, following concerns that the first care home could no longer adequately meet JG’s needs, Worcestershire moved JG to a second home in Swindon. JG’s daughter was again part of the decision-making process. The placement in the second care home was again funded by Worcestershire.

On 27 May 2015, JG was detained in a hospital in Swindon under s.2 of the 1983 Act, for assessment. On 23 June 2015 she was detained for treatment under s.3 on the 1983 Act, again in Swindon. That was the start of her second period of detention.

On 4 August 2015, during her second period of detention, Worcestershire issued a termination notice to the care home in Swindon which had been accommodating JG. The judge found at [156] that it was a standard form notice addressed to the residential care home in which JG had been resident, simply instructing it in a single line with no explanation, to cease to supply services to her. Importantly, he found that this was not a decision by Worcestershire under s.117(2) of the 1983 Act that JG was no longer in need of after-care services.

On 12 November 2015, JG was discharged from detention under s.3 of the 1983 Act. She remained an in-patient. She was finally discharged from hospital on 9 August 2017. She was then in need of and received after-care services.

A dispute arose as to where JG was “ordinarily resident” immediately before she was detained under s.3 for the second time in June 2015, and which authority should pay for JG’s after-care services from 9 August 2017, when she left hospital. The appellant was asked to determine this dispute under the mechanism provided for by s.40 (1) of the Care Act 2014 (“the 2014 Act”). On 11 May 2017, the appellant held that JG was ordinarily resident in Swindon, because that was where she was living immediately before her second period of detention. That conclusion was in accordance with the appellant’s own statutory guidance issued pursuant to s.78 of the 2014 Act.

Swindon sought a review of that decision. On 28 February 2020, the appellant reversed his decision and decided that JG was in fact ordinarily resident in Worcestershire for “fiscal and administrative purposes”. That was a phrase taken from the judgment of Lord Carnwath in R (Cornwall CC) v Secretary of State for Health [2016] AC 137 (“Cornwall”). In coming to that conclusion, the appellant acknowledged that it was at odds with his own guidance, but said that his change of mind was based on both the legislation and the case law. He indicated that he was in the process of considering how that guidance should be amended. Counsel informed us that, as a result of this litigation, that guidance has not been amended.

The judge’s judgment at [2021] EWHC 682 (Admin) extends over 160 full paragraphs. It addresses in detail every point raised by each party.

At centre stage was the appellant’s decision of 28 February 2020, in which he had quashed his original determination (to the effect that Swindon was the relevant local authority) and replaced it with a determination that the relevant local authority was Worcestershire. The judge said that Worcestershire’s claim for judicial review of that decision required them to show that each of the three propositions on which it was based was wrong in law. Those three propositions were set out by the judge at [29] as follows:

The judge then went on to demonstrate how and why he considered that each of those three propositions was indeed wrong. The bulk of the judgment, from [31] to [133], was focused on Proposition 1 (the “ordinarily resident” issue). The judge found that JG was ordinarily resident in Swindon, not Worcestershire. He based this on:

For those reasons, he said that “ordinarily resident” was to be given its ordinary meaning, and not to be overlaid with concepts of “fiscal and administrative convenience”; on this basis, he found that JG was ordinarily resident in Swindon immediately before her second period of detention.

As to Proposition 2 (which, as I have said, no longer features directly in this appeal) the judge rejected the appellant’s argument that, where there has been a period of detention, immediately followed be a period of after-care, immediately followed by a second period of detention, s.117(3) of the 1983 Act required a decision as to the ordinary residence of the person immediately before they were first detained, rather than immediately before their most recent period of detention. His views are set out in short order at [134]-[139].

As part of his reasoning on Proposition 2, the judge said at [136] that s.117 contemplated that, on each occasion that a person was to cease to be detained under s.3, the question of appropriate after-care service will arise and will be addressed by whichever bodies owe the s.117(2) duty at the time. The responsibility for the services to be provided after that period of detention will fall on the area in which they were ordinarily resident when the decision to detain them was made (in other words, immediately before what was, in this case, the second period of detention).

The judge considered that this conclusion had some bearing on Proposition 3, which he dealt with at [140]-[151]. The result was not one that either party had advocated. The appellant had argued that an existing duty to provide after-care services arising from a period of detention continued until the clinical commissioning group or local health board and the local social services authority were satisfied that the person concerned was no longer in need of such services, under s.117(2). He argued that, in the absence of such a decision, this duty continued even if there was a second period of detention. The appellant said that, because no such decision had been taken by Worcestershire, their original duty continued, notwithstanding the second period of detention. Thus it was said that Swindon never owed any duty under s.117, even if JG was ordinarily resident there immediately before her second period of detention. Worcestershire argued that their continuing duty ceased when JG was detained for a second time.

The judge did not accept either party’s case: see in particular [145]-[151]. Instead, building on his answer to Proposition 2, he concluded that Worcestershire’s duty ceased by operation of law at the moment JG was released from her second period of detention.

Section 2 of the 1983 Act provides for the admission to hospital and detention of a person for assessment on the grounds that they are suffering a relevant mental disorder and that it is in their interests, or the interests of others, that this step be taken. Section 3 provides for a patient to be “admitted to a hospital and detained there” for treatment on a number of grounds.

The relevant section of the 1983 Act for present purposes is s.117. In its unamended form, s.117 provided as follows:

As from 1 April 2015, s.75 of the Care Act 2014 made a series of amendments to the 1983 Act. Section 117(3) was amended so that it now provides as follows:

Although the 2014 Act contained duties and requirements in respect of the provision of care services generally, in the present appeal the parties only referred to one section of the Act itself. That was s.39, which provided as follows:

One of the arguments advanced by Mr Parkhill on behalf of Worcestershire was that, if Mr Buley was right about the interpretation to be given to “ordinarily resident” in s.117(3), this section, and in particular section 39(4), would be otiose. I return to that point in Section 6 (paragraphs 80 to 81) below.

As explained in greater detail below, Cornwall (which is central to the appellant’s case about the “ordinarily resident” test) is not a case under the 1983 Act at all. Instead it arises under particular provisions of the National Assistance Act 1948 (“the 1948 Act”) and the Children Act 1989 (“the 1989 Act”):

For convenience I shall refer to these provisions of the 1948 and 1989 Acts as “the deeming provisions”, although I am conscious that s.105(6) is more aptly described as a ‘disregarding’ provision. They are provisions which, for perfectly sensible reasons, maintain a fiction, and require the court to depart from what would otherwise be a clear answer as to residence, based simply on where the service user lived at the relevant time.

The leading case on the general approach to be taken to the words “ordinarily resident” is R v London Borough of Barnet Ex parte Shah [1983] 2AC 309, where Lord Scarman said at 343 G-H:

Hertfordshire is a decision of this Court relating to s.117 of the 1983 Act and the meaning of the words “is resident”. It was decided prior to the amendments effected by the 2014 Act, and the addition of the word “ordinarily” in s.117(3). The case was also procedurally a bit of a mess, for the reasons explained by Carnwath LJ (as he then was) at [1]-[4]. The court was being asked to consider the facts of a different case, involving a service user called JM, to illustrate the problem that had arisen. Hertfordshire hoped that the court’s consideration of this example would lead to the grant of a declaration, to the effect that the words “is resident” under the 1983 Act had the same or substantially the same meaning as the words “is ordinarily resident” in s.24 of the 1948 Act. It is necessary to understand the facts first, in order to see how the relief sought by Hertfordshire was ambitious, to say the least.

JM lived in Hammersmith and Fulham in a one bedroom council flat. He suffered from significant cognitive impairment. Following a serious road traffic accident he was provided with accommodation in a residential care home, still in the area of Hammersmith and Fulham. Eventually, it was decided that his needs could no longer be sustained in a community setting, and in July 2007 he was transferred to Roanu House in Sutton. He was never happy there and sometimes returned to Hammersmith to sleep rough. Following a return to Roanu House he was admitted to Sutton Hospital, a psychiatric hospital, and eventually was compulsorily detained there under s.3 of the 1983 Act.

Sutton argued that “is resident” meant the same as “is ordinarily resident” under the 1948 Act, and that therefore the period in which JM was living in Roanu House should be disregarded (and that Hammersmith & Fulham were therefore the responsible authority). That was the same argument that Hertfordshire had advanced in their own case against Hammersmith & Fulham. At first instance, ([2010] EWHC 562 (Admin); [2010] LGR 678) Mitting J rejected that submission. He said:

Mitting J explained that one of the difficulties of using provisions in other legislation to define the term in the 1983 Act was that the other legislation contained different provisions. So, for example, he said, s.24(5) of the National Assistance Act 1948 expressly dealt with someone who was provided with residential accommodation, and provided that that person would be “deemed” for the purposes of the 1948 Act to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided. Mitting J said that what was deemed to occur for the purposes of the 1948 Act could not be transposed into the 1983 Act, which contained no similar provision.

The decision of Mitting J was upheld by the Court of Appeal. Carnwath LJ expressly noted at [17] that s.117 contained no deeming provision corresponding to s.24(5) of the 1948 Act. In addition, at [18], he referred to the decision of the House of Lords in R v Richmond upon Thames London Borough Council Ex parte Watson [2002] 2AC 1127, where the House held that s.117 was a freestanding provision which both imposed the duty and conferred the power to provide after-care services independently of the 1948 Act.

Carnwath LJ therefore concluded that Mitting J had been right to conclude that Sutton was responsible for the after-care services. He said:

The Cornwall case, decided in 2015, was at the heart of Mr Buley’s submissions to the judge and on appeal. The patient, PH, was cared for in Wiltshire by his parents until 1991 when, pursuant to s.20 of the Children Act 1989, Wiltshire Council placed him with long-term foster carers in South Gloucestershire. PH‘s parents moved to Cornwall later that year but PH continued to live with his carers in South Gloucestershire until he reached the age of 18. Once that happened a placement was found for him in a care home in Somerset.

The issue was where PH was ordinarily resident for the purposes of s.24(1) of the 1948 Act. The Secretary of State decided that it was Cornwall, on the basis that, although there was a presumption that PH was ordinarily resident in the place indicated by the 1989 Act (which was South Gloucestershire), this presumption had been rebutted by his ties with his parents who were in Cornwall. The High Court agreed. The Court of Appeal reversed that ruling and concluded that the responsible authority was South Gloucestershire (the equivalent of Swindon in the present appeal). The Supreme Court disagreed, holding by a majority that PH was ordinarily resident in Wiltshire (the equivalent of Worcestershire in the present appeal) because of their original funding obligations.

The decision has attracted a certain amount of criticism, not least from Lord Wilson, who dissented and agreed with the Court of Appeal that the answer was where PH actually lived, namely South Gloucestershire. He pointed out that the answer given by the majority – Wiltshire - had not been contended for by any of the parties. He expressly warned at [66] that, although the majority’s view was said to be based on the policy behind the statutes, judges were not legislators.

It might also be respectfully noted that the precise basis on which the majority reached their conclusion is not as clear as it might be (and was therefore the subject of extensive debate in the present appeal). However what can be said with confidence is that the decision was reached on policy grounds. Lord Carnwath said:

In arriving at these conclusions, Lord Carnwath distinguished Hertfordshire on the basis it was decided under a different Act. He said at [56]:

In his judgment below, the judge considered these paragraphs carefully. His conclusion was that, not only had Lord Carnwath not questioned the correctness of the decision in Hertfordshire, but he had explained its result on the basis that the issue in that case arose under a different statute and was therefore subject to different considerations, specifically the lack of an equivalent deeming provision in the 1983 Act. The judge below therefore held that Hertfordshire was not inconsistent with the conclusion which Lord Carnwath had reached in Cornwall.

It is important, first, to identify the factual context for the dispute about Proposition 3 and the second ground of appeal (which I am taking first, for the reasons that I have explained). I would summarise that context in these terms:

It is common ground that Worcestershire owed JG a duty to provide after-care services following her release from her first period of detention in 2014. That was because she was resident in Worcestershire when she was detained for the first time.

Worcestershire argued before the judge that – by sending the termination notice described in paragraph 10 above - they had made a decision which terminated their duty under s.117(2). The judge rejected that submission, and found as a fact at [155]-[159] that Worcestershire had never made a valid decision to bring their s.117 duty to an end. That finding of fact is not challenged on appeal.

As a result, Worcestershire had to say that their duty somehow came to an end by operation of law. Their original argument was that the duty came to an end when JG was detained for a second time. The judge rejected that submission too. Again, there is no appeal against that rejection.

So if the duty was still extant when JG was detained a second time, and if it was not terminated as a matter of fact, how and when – if ever – did it come to an end? The judge found that the duty came to an end by operation of law at the point when JG was released at the end of her second period of detention. As I have said, that was not a point that had been argued before him.

The essence of the judge’s reasoning on this point is at [148] and [149]:

On behalf of the appellant, Mr Buley argued that the judge’s unheralded conclusion was plainly wrong. He said that the judge had been right to conclude that the duty subsisted during the second period of detention because of the need for care planning once JG was released from that further period of detention. But in the absence of a clearly communicated decision bringing the duty to an end, it was irrational to say that the duty came to an end as a matter of law at the point of release, to be replaced by a new duty owed by a different local authority. Mr Buley submitted that there was nothing in the 1983 Act that supported that proposition. Further, he said, it was contrary to logic and common sense for Worcestershire’s duty to expire just at the point when it was needed most.

Accordingly he said that Worcestershire were under the relevant duty at the time of the first detention, and that it was common ground or decided by the judge that that duty continued both after the first release and at the time of the second detention. There being no relevant decision to terminate under s.117(2), the duty continued on release following the second period of detention, irrespective of where the patient was ordinarily resident immediately prior to that second period of detention.

Mr Parkhill submitted that, although it had not been his argument below (Footnote: ¹), the judge had been correct. First, he said that this complaint was really answered by the judge’s rejection of the appellant’s case on Proposition 2, which is not the subject of any appeal. The judge had said:

Secondly, before the judge, Mr Parkhill suggested that, once JG was re-detained, she was no longer caught by the words of s.117(1) of the 1983 Act, and therefore the duty under s.117(2) ceased to be owed to her.

I have a number of concerns about the judge’s conclusion on Proposition 3. They have led me to conclude that his solution was incorrect. That is principally because it cannot be rooted in the words of the 1983 Act. My analysis is as follows.

The starting point is that the words of s.117(2) could not be clearer. It provides that the duty continues “until such time as” a decision is taken by the relevant medical/social care staff at the authority that they are satisfied that the person concerned is no longer in need of after-care services. As the judge found, there was no such decision here. So this whole debate really boils down to trying to find a way round the express provisions of s.117(2), and to alight upon some other way in which it might be said that the duty came to an end. No matter how ingenious such an answer might be, it will always be met with the response: that is not what the Act says.

There was much debate about whether the original duty owed by Worcestershire at the start of the first period of detention could be trumped by a new duty owed by Swindon, based on the fact that JG was “ordinarily resident” in Swindon at the start of the second period of detention. Assuming for the purpose of this argument that JG was ordinarily resident in Swindon at that point, I do not consider that there was any competition between rival duties. As the judge said, there could only be one duty at any one time. That duty rested with Worcestershire until it came to an end either on the facts or as a matter of law. There is nothing in s.117 that could permit this court to conclude that, absent any decision by Worcestershire under s.117(2), the fact that JG had become ordinarily resident in Swindon immediately prior to the second period of detention somehow gave rise to a competition, and switched the relevant duty from Worcestershire to Swindon. Mr Parkhill’s submission – that this was the neatest and least artificial solution to the problem of competing duties – was based on a false premise. There was only ever one duty and, as long as the original duty subsisted, the question of competing duties did not arise.

For that reason, the judge’s conclusion on Proposition 2 was nothing to the point. It assumed that the original duty could be superseded in a way that was not envisaged by the 1983 Act.

The only other counter-argument to this straightforward analysis was Mr Parkhill’s submission made below, that the duty ceased under s.117(1) because, on the point of re-admission, s.117(1) no longer applied to JG: she was no longer a person who had ceased to be detained in hospital, so the duty came to an end. But there are two complete answers to that submission.

The first is that, as the judge himself said at [146], the submission proves too much. It would mean that any readmission to hospital, voluntary or otherwise, would bring the duty to an end. It would also mean that the provisions at s.117(2) about the need for an express decision that the relevant medical and care staff were satisfied that the services were no longer required would be rendered otiose if the duty automatically ceased when the service user left hospital.

The second answer is that the submission does not follow the structure or the words of s.117. JG was somebody to whom the section applied because she fell within s.117(1). She met that gateway provision. Under s.117(2) she was therefore owed the duty. According to s.117(2), that duty continued until such time as there was a decision that the after-care services were no longer to be provided. There was no such decision in this case. Thus, once JG was a person who met the gateway provision of s.117(1), she was owed that duty until there was a decision which terminated the after-care arrangements in accordance with s.117(2).

There are other practical difficulties with the judge’s solution. Indeed, the whole notion of an automatic change in the identity of the authority with the duty to provide after-care services, triggered by law rather than by a decision made by those actually involved in the care of the service user, seems to me to be unrealistic. It would be woefully uncertain. How would that change come about? How would it be effected? How would it be communicated? Who is responsible for identifying that it had happened? There were no answers to these questions.

In addition, from a purely common sense perspective, the judge’s conclusion seems to me to be a most unsatisfactory outcome. Someone like JG is particularly vulnerable. When/if she is detained, everyone must be trying to work to a plan which sees her release from detention as soon as possible. All through the period of her detention, there would be extensive planning by the responsible authority which, on the judge’s findings in this case, was Worcestershire. It would be curious to find that, at the very moment those plans come to fruition, and JG is released, Worcestershire suddenly became irrelevant, and a new duty was owed by a new local authority. That would not make for continuity of care, and would be very unsatisfactory for the service user. Unless I was compelled to conclude that was the effect of s.117, I would be very reluctant to reach a decision on that basis.

For the reasons that I have given, I do not need to reach such a decision. S.117 is clear. The duty subsists until it comes to an end by the communication of a decision by Worcestershire pursuant to s.117(2). There has been no such decision. The duty therefore continued throughout both the second period of detention and beyond.

For these reasons, if my Lord and my Lady agree, I would allow the second ground of this appeal. That is, on its own, sufficient to overturn the judge’s conclusions and to find that Worcestershire was the relevant local authority with the duty to provide after-care services to JG. That makes it strictly unnecessary to go on and deal with the arguments about where JG was ordinarily resident at the time of her second detention. However, as advertised during the hearing, it would be inappropriate for this court to duck that much more difficult question. Accordingly, I go on to consider the first ground of appeal in any event. I assume for that purpose only that my conclusion on the second ground of appeal is wrong, and that it matters where JG was ordinarily resident in June 2015.

This ought to be a very straightforward question: where was JG ordinarily resident immediately before her second period of detention? For a variety of reasons, it is not. However, I have concluded that, on balance, the judge was right to conclude that the answer to the question was Swindon. I have not found the decision easy and I can see the force of the competing arguments. But my reasons for deciding this issue in favour of Worcestershire are set out below.

The starting point must be the ordinary meaning of the words “ordinarily resident”. Where was JG ordinarily resident immediately before her second period of detention? Where did she live? In my judgment, the answer was Swindon. If JG or her daughter had been asked in 2015, ‘where does JG live?’, they would have answered ‘Swindon’.

That is the answer without having regard to any of the authorities. But it is also the answer to the general formulation of the question posed by Lord Scarman in Shah (paragraph 29 above). Swindon was the particular place of residence which had been adopted on behalf of JG, primarily because it was close to her daughter. It was part of the regular order of her life. Moving JG to Swindon was expressly for the purpose of placing her in as settled a location as possible.

If that is the answer on the ordinary words used, and the answer by reference to the leading general authority on the point, the question then becomes whether there is any statutory provision or any authority which would oblige this court to come to a different conclusion. Mr Buley fairly accepted that, without the decision in Cornwall, the ordinary meaning of the words “ordinarily resident” lead to the conclusion that Swindon owed the duty at the start of JG’s second period of detention.

I consider that this authority confirms that conclusion. As to the outcome, speaking for myself, it seems to me entirely unsurprising that the Court of Appeal refused to grant the declaration sought, and to say that “is resident” means the same as “is ordinarily resident”. To have done so would have been, as Carnwath LJ said, to rewrite the language of the statute. That is not what the court is there to do.

This court construed s.117 (in its unamended form) as fixing liability on the local authority where the service user was resident, regardless of any previous placing or funding arrangements. In other words, they concluded that the local authority where the service user actually lived was liable for the after-care services.

So, if we followed the approach taken by the Court of Appeal in Hertfordshire, the answer in the present case would be that Swindon owed the duty. Mr Buley accepted that too. The decision in Hertfordshire is binding on this court unless it can be shown that it was decided per incuriam, or that the subsequent amendments to s.117, or the provisions of the 2014 Act generally, should lead to a different conclusion.

The decision in Hertfordshire is plainly not per incuriam. On the contrary, it was expressly considered by the Supreme Court in Cornwall, and approved on the basis that it was a particular answer to a question arising under a particular statute. Accordingly, Hertfordshire is not even arguably wrong; on the contrary, in relation to the words “is resident” in the 1983 Act, it has been approved by the Supreme Court in Cornwall.

There is one further point to be made about the decision in Hertfordshire. I am in no doubt that, as part of the comparison exercise between the 1983 Act and the 1948 Act which the Court undertook in that case, the presence in the latter of the deeming provision was regarded as important. That was expressly noted at [17], and featured in the Court’s conclusions, in particular at [46]. Carnwath LJ expressly said that the attempt to align the test under the under the two statutes “glosses over the status of the deeming provision”.

In my view, subject always to Cornwall, that leaves the appellant with the subsequent amendments to the 1983 Act, or the 2014 Act itself, as the only way round the binding effect, in the present appeal, of the decision in Hertfordshire.

I deal first with the amendments to s.117 effected by s.75(3) and 75(4) of the 2014 Act. The principal change relied on is, of course, the change from “resident” to “ordinarily resident”.

The first point to make is that the term “ordinarily resident” was considered in Hertfordshire (because it arose under the statutes being used as comparators). Mitting J did not think there was any discernible difference between ‘resident’ and ‘ordinarily resident’. And whilst the Court of Appeal did not grant a declaration to that effect, that seemed more to do with reasons of principle than matters of language.

Absent the particular meaning ascribed to the words “ordinarily resident” in other statutes, and just looking at the words themselves, there is no significant difference between the two concepts of where X “is resident” and where X “is ordinarily resident”. Or to put the point the other way round, the addition of the word “ordinarily” does not bring with it, as a matter of language, some sort of deeming provision whereby questions of actual residence are to be superseded by considerations of who might be fiscally or administratively responsible for the provision of the care services in question. The addition of the single word “ordinarily” cannot bear that weight.

It is at the heart of the appellant’s case that the change from “resident” to “ordinarily resident” in s.117(3) had a seismic affect, not because of the language used, but because the expression “ordinarily resident” has a particular meaning in care statutes which ensures that actual residence is trumped by considerations of fiscal and administrative responsibility. So it is said that, by that one simple amendment to s.117, the whole meaning of the provision was changed and Hertfordshire is no longer good law.

There are a number of difficulties with that submission. The first is that, as Mr Buley candidly accepted, this seismic change was not apparent to the appellant at the time that he piloted the Care Act through Parliament in 2013/2014. The seismic change was not reflected in the appellant’s own post-2014 guidance (paragraph 12 above) which continued to promote the unadorned approach to ‘ordinarily resident’ (and led here to the appellant’s original decision that Swindon was responsible). Mr Buley also accepted that the appellant only became aware of this potential change in about 2020, and only as a result of his (belated) consideration of the Supreme Court’s judgment in Cornwall. In other words, if it was a seismic change, it was not a change known to the person responsible for the legislation that brought it about.

Secondly, one of the factors that has given rise to the particular meaning to be ascribed to “ordinarily resident” under the both the 1948 and the 1989 Acts are, of course, the deeming provisions. That much is plain from Hertfordshire. There are no such provisions in the amendments to s.117 effected by the 2014 Act. It must have been apparent to the promoters of the Bill that the deeming provisions were an integral part of the machinery in the other statutes by which actual residence is trumped by the local authority with fiscal/administrative responsibility for the service user. The absence of equivalent amendments here must therefore be considered to be deliberate.

On this point, Mr Buley argued that there was no need for a deeming provision because the amendments fixed the point in time when the test of “ordinarily resident” was to be applied. I do not accept that submission. The whole point about the deeming provisions is that they propagate a fiction by asking the Court to treat something as true which is not, or to disregard something which is otherwise true and relevant to the issue being determined. There is no equivalent to the deeming provisions in the amendments to s.117.

Thirdly, I note that the 2011 Law Commission report, which gave rise to the 2014 Act, expressly considered the decision in the Hertfordshire case. The report explained that whilst some local authorities were concerned about the implications of that judgment, other consultees argued that the effect of it should be retained, and explained why. It is not at all apparent from the Law Commission report, nor any of the other background materials to which we were taken, that one of the purposes of the 2014 Act (and its amendments to the 1983 Act) was to do away with Hertfordshire and bring responsibility back to the original provider, wherever the service user was now resident. It would not be appropriate for this court somehow to infer that this was what was intended when the background materials are ambivalent at best, and in some places suggest that that was not the intention.

On this point the judge’s summary was as follows:

I agree with this part of the judgment. These are powerful reasons why, in my view, the amendments effected by the 2014 Act do not entitle this court to depart from the judgment in Hertfordshire.

None of the other amendments to the 1983 Act affect this question at all. The judge rightly noted at [110] that the Explanatory Notes refer to the “minor amendments to s.117” and he explained how and why that was an apt description. Accordingly, I conclude, as the judge did, that there is nothing in the amendments to s.117 that has any significant effect on the question before this court, and nothing which would indicate that the decision in Hertfordshire was not still applicable and binding.

Do the provisions of the 2014 Act themselves make any difference? Particular emphasis was placed on s.39(4) of the 2014 Act. It was submitted that these provisions were generally designed to reduce anomalies in cases where accommodation is provided. I am prepared to accept that submission. But that does not mean that, on its own, that produces a different answer to the question of where JG was ordinarily resident than was provided in Hertfordshire. In my view, the judge dealt with this point correctly at [112] of the judgment below, where he said:

In at least one way, s.39(4) of the 2014 Act is contrary to Mr Buley’s principal submission. If he was right as to the change effected by the amendment to “ordinarily resident”, then it followed that this and other provisions of the Care Act 2014 would be otiose. There would be no need for this provision because, on Mr Buley’s case, this is what is meant by “ordinarily resident” anyway. Of course one has to recognise that there are times when, out of an abundance of caution, or plain error, the parliamentary draughtsman includes redundant provisions. But it is not a promising feature of the appellant’s interpretation of the amendments, that they render otiose other simultaneous legislative provisions.

No other parts of the 2014 Act were identified which made any difference to the issue raised by Ground 1 of the appeal. But the more that we looked at the background to the 2014 Act, the more certain I became that – absent a consideration of Cornwall - it would be quite wrong for this court to depart from the decision in Hertfordshire. That ended up being consistent with Mr Buley’s submission too: he expressly accepted that, if he did not get home on Cornwall, he could not argue his case on the basis of either the 2014 Act or the amendments to the 1983 Act.

So the last but most important point on the first ground of appeal is whether the judge was wrong to conclude that the decision of the Supreme Court in the Cornwall case did not affect the approach to what was meant by “ordinarily resident”. It is said that it is absurd for there to be these sorts of anomalies between different parts of the care system, and that the sort of policy-driven result in Cornwall should now be applied to the 1983 Act.

Nobody is suggesting that anomalies are a good idea, or that the most appropriate solution would not be to have one overall series of rules relating to the determination of where someone is “ordinarily resident”, that holds good for all care legislation. But ensuring such a solution is traditionally the role of legislators, not judges. Moreover, it might be said that the Law Commission report gave the Government the perfect opportunity to do just that through the provisions of the 2014 Act, and they chose not to do so (or at least not in a way that they themselves realised that that is what they had done). So the only question is whether the result in Cornwall should be read across to the present case.

Although the judge called this the second reason why he did not accept that proposition, at [87] he provides his answer. He said:

Again, I find myself in respectful agreement with the judge.

Mr Buley submitted that, whilst Cornwall is itself a problematic case, the ratio of the decision is that, for all care statutes which use the expression “ordinarily resident”, that means the local authority with fiscal/administrative responsibility, not where the service user lives at the relevant time. He fairly accepted that he was asking the Court to read across from one set of statutory provisions to another, different set of statutory provisions, and that he was asking us to extend the effect of Cornwall.

I start with the simple observation that, although Cornwall is a controversial decision, and although the dissenting judgment of Lord Wilson has found plenty of support amongst commentators since the judgments were handed down, this court is not in a position to pick and choose which Supreme Court cases are binding upon it and which are not. In simple terms, all Supreme Court cases are binding on the Court of Appeal.

Accordingly, it is necessary to identify the ratio of Cornwall in order to see what precisely it is (if anything) that is binding on us. In this context, [58]-[60] of the judgment of Lord Carnwath (set out in paragraph 39 above) were the subject of a deconstructionist analysis, by both counsel, that would not have been out of place in the English Department of Cambridge University in the 1980s.

Mr Buley’s original submission was that the ratio could be found in the last part of [58] and the conclusion that it would be “artificial to ignore the nature of such a placement in that parallel statutory context”. I have to say that I do not regard that or the subsequent sentence as being any sort of ratio. It is an observation of fact, although it is not irrelevant that one of the points that Lord Carnwath stressed is that PH was living somewhere “not by his own settled intentions”. And the “parallel statutory context” was a reference to the 1989 Act which, like the 1948 Act but unlike the 1983 Act, had specific deeming provisions.

Mr Parkhill suggested that the ratio could be found in [59] where, in summary, Lord Carnwath suggested that what mattered was the deeming provision in the 1948 Act. It seems to me that that was a relevant consideration, but it might be hard to say that this alone was the ratio of the case. [59] is also problematic, because although its introduction uses the expression “in other words”, its content does not re-state [58] in another way, but is instead dealing with something that has not been addressed in the preceding paragraphs.

That leaves [60] and its reference to “for fiscal and administrative purposes his ordinary residence continued to be in [Wiltshire], regardless of where they determined that he should live.” That was the result in the case, and it seems to me to have been informed by the entirety of paragraphs [57]-[60].

Mr Buley’s alternative argument was that the ratio of Cornwall was that, when considering “ordinarily resident”, the court should disregard placements which were made by a local authority solely for the purposes of carrying out their statutory duty in a parallel statutory context. That broad interpretation explains why he said that the result in Cornwall could be translated to the present case, although he fairly said that that “was not an unproblematic reading of the judgment”.

Mr Parkhill argued that all that Cornwall was doing was saying that the deeming provision in s.24 of the 1948 Act had this effect on a dispute as to “ordinarily resident” under that statue, in circumstances where the 1989 Act was also in play.

In my view, both of those interpretations are too extreme. The answer, as so often, lies somewhere in the middle. There is no doubt that Lord Carnwath wanted to see a greater consistency arising out of the use of the term “ordinarily resident”. But by the same token, he could not and did not ignore the role that the deeming provision played in that analysis. He expressly addressed it at [59].

In order for Mr Buley to succeed in his argument on this appeal, he needs to persuade this court that the deeming provision in the 1948 Act had no part to play in the ratio of Cornwall and that Lord Carnwath was intending to make the sort of generalised policy statement about all care statutes, which Mr Buley urged to us, and which I have summarised at paragraph 93 above. On a proper reading of [58]-[60], I simply cannot accept that that is the effect of the judgment. The reason why, in Mr Buley’s own words, that is a “not unproblematic” reading of the judgment is that, in my view, it is not what Lord Carnwath said.

It is of course very tempting to strive to remove anomalies and to arrive at results which might be consistent with other related statutory provisions. In the course of his fair and candid submissions, Mr Buley came close to persuading me that that is what we should do in this case. But in the end, I have concluded that that would be a misstep. Whilst a policy-driven approach was justified in the statutory context under review in Cornwall, it is not justified here where, on the appellant’s own case, the 2014 Act and its amendments expressly failed to implement the sort of policy now being urged on this Court.

Cornwall is a decision on a different statute which is expressly based, at least in part, on statutory provisions which are missing here. In my view, there is no basis on which the decision in Cornwall can be read across to the different provisions of the 1983 Act, so as to overrule Hertfordshire and give effect to a policy of which the appellant was unaware until 5 years after the 2014 Act had come into force.

For all these reasons, I would dismiss the first ground of the appeal. Of course, because of my conclusions on the second ground of appeal, if my Lady and my Lord agree, the appeal itself will be allowed.

I agree.

I also agree.