AFP Manchester City Council v St Helens Borough Council

This is a renewed application for permission to apply for judicial review, permission being refused on the papers by Mr Purchas QC, sitting as a deputy High Court judge.

The claimant, Manchester City Council, seeks permission to challenge the decision of the defendant, St Helens Borough Council, dated 30 April 2008, to terminate all community care for PE, the interested party, by her litigation friend, the official Receiver, as of 31 May 2008.

PE is 36 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 of 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.

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 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 receiver, 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.

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 responsibility, 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 for 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.

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.

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 receiver. 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.

I bear in mind that this is a permission hearing. The grounds, submissions and reasons will be stated as shortly as is consistent with dealing with the essence of them. This means that I will not refer to every point raised. I have, however, read all the papers, including skeleton arguments and authorities relied on, and taken them into account.

The first submission seems to be a criticism of St Helens, in that it made arrangements for PE under section 21 of the Act until July 1999 and then changed to making arrangements under section 29 of the Act, the difference being that under section 21, even if PE moved to another area, she would be deemed to be “ordinarily resident” in St Helens and therefore St Helens would have legal responsibility for provision; whereas under section 29, there is no such deeming provision and thus St Helens has no duty but a residual discretion to make arrangements.

The second submission, the first real ground of challenge, is that St Helens has acted unlawfully because, having exercised its powers to provide for PE under section 9, having done an assessment on PE in January 2000 on the basis of PE living in Manchester, St Helens was under a duty to provide the services. Absent a change of circumstances, which has not occurred since PE moved to Manchester, St Helens is acting unlawfully in withdrawing support. The duty does not arise from section 29, which is a duty to carry out the assessment. It arises out of section 47, because once the assessment process has been undertaken, there is a statutory duty -- or at least a public law duty -- to provide services, and that duty continues until there has been a relevant change of circumstances justifying the assessment. The duty arises out of the assessment. Transfer of responsibility is not automatic. St Helens, it is submitted, treated PE as “ordinarily resident” in their borough. Even if she was not so treated, the duty would still have arisen. The decision of the Secretary of State does not change the position, given the factual basis on which the assessment, (namely that PE was to live in Manchester indefinitely), was made.

During the course of the claimant’s submissions the goalposts seemed to change. It was accepted by counsel for Manchester during the hearing that, if the decision of the Secretary of State did come into play, Manchester was required to conduct an assessment under section 47, but it was submitted that Manchester had cut through the process, having decided by way of assessment that, in the light of St Helens responsibilities, there was no need to make any provision of services. The concession that Manchester should have completed a community care assessment was withdrawn in an email sent the day after the hearing. The submission now, is that the council was entitled to decide that PE did not appear to need community care services, as she was in receipt of a full package from St Helens which was fully comprehensive and which St Helens was under a duty to continue to provide.

The third submission, the second challenge, is an irrationality/ unreasonableness challenge to the effect that, by withdrawing support for no apparent reason, St Helens has breached the legitimate expectations of both Manchester and the interested party. Even if it were lawful for St Helens to re-assess PE’s case with a view to whether to treat itself as being discharged from performing its duty to PE, it was not lawful to take that course of action. This is because of the legitimate expectation of Manchester that St Helens, having set up a unique and expensive care package, would continue to accept responsibility for it until circumstances had changed. It is pointed out that the care package currently in place is not a care package that one local authority can reasonably and fairly set up in the area of another local authority and then require that other local authority to take it over. St Helen’s failure to contact the claimant in, or shortly after, July 1999 severely prejudiced the council in relation to PE and her care package, by removing Manchester’s entitlement to: 1) secure St Helens confirmation that, if it proceeded as proposed, it would remain the authority responsible for PE unless there was a sufficient change of circumstances; 2) to object to the arrangements that St Helens intended to make on the grounds that the arrangements under section 21 were more in PE’s best interests and more appropriate as a discharge of the local authority statutory functions; 3) accept responsibility, but make arrangements under section 21 of a nature and costs acceptable to Manchester. If St Helens had approached Manchester in January 2000, Manchester would have challenged the basis of the package.

The interested party, supporting Manchester generally (and particularly with regard to this ground), submits that if St Helens had got in touch in 2000 to indicate that they wished to discharge their liability on PE’s move to Manchester, then PE and those supporting her would not have agreed to the proposed move and would have insisted on provision in St Helens. St Helens have transferred responsibility without PE or Manchester being able to do anything about it.

Looking at the history of the case and the practice and conduct of St Helens, the IP contends that the assessment and plan was done on an open-ended basis, supported by funding on an open-ended basis. Had a limitation of time been canvassed at the time, representations could have been made and the options might have been different.

The claimant’s fourth submission is, that where each local authority has the power to be responsible for PE, then the court should determine on public law principles which one ought to be the responsible authority.

It is submitted that the observations of the Court of Appeal in the related case of R (St Helens Borough Council) v Manchester Primary Care Trust [2008] EWCA Civ 931; [2008] WLR (D) 288 can be distinguished, as this case involves two local authorities of equal standing.

Dealing with the first point, St Helens points to the fact that section 21 applied because residential accommodation was being provided by the council. The situation changed when PE moved and was no longer in residential accommodation, and thus section 21 had no further application. Parliament clearly intended the difference in the sections in relation to the deeming provision.

Dealing with the first main challenge, it is submitted that it is incomprehensible and misconceived. The statutory scheme is clear and the concept of “ordinary residence” is central to its operation, hence the process to apply to the Secretary of State to resolve disputes between local authorities. If the claimant were right, there would be no need for the procedure. Under section 29 St Helens is under a duty to make arrangements only for persons “ordinarily resident” in their authority. There is a residual discretionary power to make arrangements for those not “ordinarily resident” in the authority, and, where the defendant exercises discretion to make provision for a person who is “ordinarily resident” in another local authority, its expenditure is recoverable from that other local authority under section 32. Moreover, there is no requirement for a change in circumstances, in order for the local authority to decide to cease funding. In any event, the Secretary of State’s decision amounted to a change of circumstances. That decision means that Manchester is under a duty to provide; St Helens is not. St Helens’ case is that it is has a power to continue to provide services, but has made a rational decision to cease funding, in the light, inter alia of the Secretary of State’s decision.

Dealing with the question of “legitimate expectation”, it is submitted that there could be none. The statutory scheme makes it clear that “ordinary residence” is central to the operation of the Act. The role of the Secretary of State is to resolve disputes between local authorities as to which the responsible body is. The Secretary of State made a determination, and Manchester was aware from 2006 that St Helens was no longer willing to make the payments. There had been no undertakings to fund PE indefinitely; no local authority could do this. Reliance is placed on a letter from the claimants from Manchester to the official receiver, where it is not prepared to give any undertakings as to the continuance of the package of care. I quote from exhibit FMS 3, dated 29 August 2008:

“Clearly the council cannot and will not bind itself to an undertaking to never alter the package of care in respect of your client. To do so would be neither in the best interests of your client nor appropriate in respect of our obligations to the public purse. The community care provisions require us to re-assess those in receipt of care packages on a regular basis...”

That was a letter written by the principal solicitor of the claimants. St Helens submit that there is no abuse of power, particularly in light of the Secretary of State’s decision, which St Helens took the proper route to obtain.

The complaint that Manchester was not informed about what arrangements were being made and that they would not have made the same arrangements, it is submitted, is not supported by the evidence and is inconsistent with the available evidence. If Manchester had been involved with PE in 2000 they would have faced the same problems and there is nothing to show that the conclusions of the experts regarding supported living would have been different.

If the ordinary residence test had been dealt with earlier, then Manchester would have had to provide the package much earlier and thereby they have been saved considerable expense.

In any event, in the light of the Secretary of State’s decision, even if “legitimate expectation” did exist, the decision of the Secretary of State would provide ample reason to justify the decision of St Helens, and once the application had been submitted to the Secretary of State any “legitimate expectation” could not justifiably continue.

So far as the interested party is concerned, the official receiver did not challenge the decision of St Helens originally. It has only introduced “legitimate expectation” as a result of Manchester’s submissions and as a result of failure to secure an undertaking from Manchester about the care package. Following the case of Bhatt Murphy the making of arrangements in 2000 by St Helens could not provide a “legitimate expectation” that they would continue to provide the services indefinitely or that they would not seek to argue that Manchester should be responsible. There were no undertakings or assurances. Moreover PE herself did not want an ongoing relationship with St Helens, as she blamed it for alleged abuse and neglect she suffered.

The submissions that things would have been done differently are speculative and based on no evidence before the court.

Both Manchester and/or the official solicitor should have challenged St Helens’ decision to refer the matter to the Secretary of State and thereafter should have challenged the Secretary of State’s decision. The interested party should have challenged St Helens decision itself if it wanted to rely on “legitimate expectation”.

The decision of 30 April was rational a) on grounds of costs -- St Helens is a small borough with a £2 million projected overspend; b) the Secretary of State has determined that PE is “ordinarily resident” in the other area, and thus, under the act Manchester is responsible; c) St Helens can use the money to benefit more people; d) the experts recommended that a different authority be responsible for PE given that she blames St Helens for abuse suffered and neglect; e) the experts’ view is that Manchester can give more joined-up care, taking into account the PCT there.

Insofar as the claimant’s fourth submission is concerned, the defendant submits that the point is unarguable in the light of the Court of Appeal case.

St Helens raises an issue itself, namely that of delay, making the point that the claim was not brought promptly and is out of time, because the decision was 30 April, not 8 May as set out in the claim form. The defendant submits that there is no good reason to extend the time period, given the fact that St Helens, in a number of letters, referred back to the decision of 30 April. Also following receipt of the letter of 2 July, which rejected Manchester’s offer, Manchester ought to have filed the claim immediately. The occurrence of errors or oversight or failure to read letters properly cannot amount to “good reason” for an extension of time. To leave it until the last day of the time period which Manchester thought was the appropriate time period, based on its erroneous belief that the decision letter was dated 8 May, was not filing the claim “promptly”. Manchester has known, since 2006, that St Helens considered that Manchester was the appropriate local authority and it was obvious once the Secretary of State had reached his decision that they would withdraw support.

Manchester apologises for the regrettable muddle, now accepting that the claim is out of time, but argues that:

I deal with the question of delay first. The claim is some days out of time. The date of the decision was 30 April 2008. The papers were received in the Admin Court office on 7 August and the claim was filed on 11 August. In my judgment, no good reason has been given for the delay. It is quite clear that all the defendant’s letters to the claimant were received -- they are dated 30 April (the decision letter); a letter dated 1 May referring to the decision letter and reiterating the decision taken re funding; a letter dated 2 May referring back to the letters of 30 April and 1 May; a letter dated 6 May referring back to the letters of 30 April and 1 May. On 8 May, Manchester’s solicitors acknowledged receipt of the five letters between 30 April and 6 May and indicated that, pending a conference with counsel the following week, the council reserved its position on the contents, but would be in a position to discuss the contents further after the conference. It took over three weeks, (assuming that the conference was in the week of 12 May as indicated in the letter), for Manchester to respond, which it did on 10 June with an open offer by the council and the PCT to undertake 50% financial responsibility backdated to 14 September 2006. The relevance of this date is, that it is the date on which St Helens had indicated that it considered Manchester responsible for PE, as opposed to April 2000, the date determined by the Secretary of State to be when PE was “ordinarily resident” in Manchester. The offer extended to undertaking the primary management of the care package after a period for as long as PE lived in Manchester, subject to any fundamental change in her circumstances. The letter also indicated that it intended to apply for judicial review of the Secretary of State’s decision and St Helens’ decision and set out the basis. In the event, there has never been any application to challenge the decision of the Secretary of State. Manchester’s offer was rejected by St Helens on 2 July. It is to be noted, for the sake of completeness, that St Helens, in order to avoid litigation, had also made an offer to Manchester, namely to waive the monies expended on PE’s care package from April 2000 (in the region of £5 million) which it pointed out would fund PE for some ten years.

Manchester is a local authority of significant size with a legal department which must be quite used to dealing with claims such as judicial review. There were a number of letters sent which referred back to the decision of 30 April. Anyone reading the correspondence could have been in no doubt as to a) what the decision was and b) the date of it. That there was a round table discussion in May, and then awaiting a response to the letter of 10 June which Manchester indicates was its letter before action, is excusable. St Helens does not seek to argue otherwise, save to say that the background context is relevant. However, given that it is asserted by the claimant, that the letter of 10 June was the letter before action, no good reason has been advanced for the delay, following the receipt of the letter of 2 July. It is said that arrangements were being put in place for PE, but that was being done from 1 June and it does not explain the delay by the lawyers in filing the grounds. Moreover, it has not been suggested that the date of the Court of Appeal’s judgment played any part in the delay. It is argued that serious issues are at stake. No doubt the lawyers appreciated that. All the more reason therefore, for the claim to be filed promptly and in time. I find, accordingly, that the claim has been filed out of time, with no good reason advanced for the delay. I decline therefore to extend the time within which to file the claim and refuse permission on the grounds of delay.

I turn to deal with the merits, should it be argued that the decision not to extend time is unreasonable. I will deal with them shortly, as I have made the substantive decision on the issue of delay.

Section 21 or section 29:

“21.

Duty of local authorities to provide accommodation

(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]

(b)

(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely —

(a)

because he is destitute; or

(b)

because of the physical effects, or anticipated physical effects, of his being destitute.

(1B) Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (1A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

(2)

In making any such arrangements] a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection.

(2A) In determining for the purposes of paragraph (a) or (aa) of subsection (1) of this section whether care and attention are otherwise available to a person, a local authority shall disregard so much of the person’s resources as may be specified in, or determined in accordance with, regulations made by the Secretary of State for the purposes of this subsection.

(2B) In subsection (2A) of this section the reference to a person’s resources is a reference to his resources within the meaning of regulations made for the purposes of that subsection.

(3)

. . .

(4)

Subject to the provisions of section 26 of this Act] accommodation provided by a local authority in the exercise of their functions under this section] shall be provided in premises managed by the authority or, to such extent as may be determined in accordance with the arrangements] under this section, in such premises managed by another local authority as may be agreed between the two authorities and on such terms, including terms as to the reimbursement of expenditure incurred by the said other authority, as may be so agreed.

(5)

References in this Act to accommodation provided under this part thereof shall be construed as references to accommodation provided in accordance with this and the five next following sections, and as including references to board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary.

(6)

References in this Act to a local authority providing accommodation shall be construed, in any case where a local authority agree with another local authority for the provision of accommodation in premises managed by the said other authority, as references to the first-mentioned local authority.

(7)

Without prejudice to the generality of the foregoing provisions of this section, a local authority may —

(a)

provide, in such cases as they may consider appropriate, for the conveyance of persons to and from premises in which accommodation is provided for them under this Part of the Act;

(b)make arrangements for the provision on the premises in which the accommodation is being provided of such other services as appear to the authority to be required.]

(8)

nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 1977.”

“29.

Welfare arrangements for blind, deaf, dumb and crippled persons, etc

(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.

(2)

…

(3)

. . .

(4)

Without prejudice to the generality of the provisions of subsection (1) of this section, arrangements may be made thereunder —

(a)

for informing persons to whom arrangements under that subsection relate of the services available for them thereunder;

(b)

for giving such persons instruction in their own homes or elsewhere in methods of overcoming the effects of their disabilities;

(c)

for providing workshops where such persons may be engaged (whether under a contract of service or otherwise) in suitable work, and hostels where persons engaged in the workshops, and other persons to whom arrangements under subsection (1) of this section relate and for whom work or training is being provided in pursuance of the Disabled Persons (Employment) Act, 1944, or the Employment and Training Act 1973] may live;

(d)

for providing persons to whom arrangements under subsection (1) of this section relate with suitable work (whether under a contract of service or otherwise) in their own homes or elsewhere;

(e)

for helping such persons in disposing of the produce of their work;

(f)

for providing such persons with recreational facilities in their own homes or elsewhere;

(g)

for compiling and maintaining classified registers of the persons to whom arrangements under subsection (1) of this section relate.

(4A)Where accommodation in a hostel is provided under paragraph (c) of subsection (4) of this section —

(a)

if the hostel is managed by a local authority, section 22 of this Act shall apply as it applies where accommodation is provided under section 21;

(b)

if the accommodation is provided in a hostel managed by a person other than a local authority under arrangements made with that person, subsections (2) to (4A) of section 26 of this Act shall apply as they apply where accommodation is provided under arrangements made by virtue of that section; and

(c)

sections 32 and 43 of this Act shall apply as they apply where accommodation is provided under sections 21 to 26;

and in this subsection references to “accommodation” include references to board and other services, amenities and requisites provided in connection with the accommodation, except where in the opinion of the authority managing the premises or, in the case mentioned in paragraph (b) above, the authority making the arrangements their provision is unnecessary.]

(5)

. . .

(6)

Nothing in the foregoing provisions of this section shall authorise or require —

(a)

the payment of money to persons to whom this section applies, other than persons for whom work is provided under arrangements made by virtue of paragraph (c) or paragraph (d) of subsection (4) of this section or who are engaged in work which they are enabled to perform in consequence of anything done in pursuance of arrangements made under this section; or

(b)

the provision of any accommodation or services required to be provided under the National Health Service Act 1977] or the National Health Service (Scotland) Act, 1947.

(7)

A person engaged in work in a workshop provided under paragraph (c) of subsection (4) of this section, or a person in receipt of a superannuation allowance granted on his retirement from engagement in any such workshop, 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 he was accepted for work in that workshop; and for the purposes of this subsection a course of training in such a workshop shall be deemed to be work in that workshop.”

There is no mileage in this point. Section 21 relates to residential accommodation being provided by the council. The assessment of January 2000 found that supported living in her own accommodation was the appropriate way forward for PE, as opposed to residential accommodation provided for by the council. This means that section 29 is the appropriate section. Although not part of his remit, it is to be noted that the Secretary of State took the view that St Helens had acted correctly in approaching the care package under section 29.

In relation to the first main challenge, the submissions of St Helens are correct in my judgment. The statutory scheme is clear. If Manchester’s submissions are right, there would be little need for the Secretary of State to determine the issue of “ordinary residence”. The decision of the Secretary of State means that Manchester is under a duty to make arrangements and carry out an assessment of need. I do not take this as meaning, as seemed to be suggested during the claimant’s argument, that Manchester is under a duty to carry on with the same package. That no doubt is why the official solicitor has taken an interest in this case.

I do not accept the submission that section 47 of the Act, which deals with the question of assessment, then imposes a duty on the local authority to continue with the provision of a package once undertaken.

“47 Removal to suitable premises of persons in need of care and attention

(1)

The following provisions of this section shall have effect for the purposes of securing the necessary care and attention for persons who —

(a)

are suffering from grave chronic disease or, being aged, infirm or physically incapacitated, are living in insanitary conditions, and

(b)

are unable to devote to themselves, and are not receiving from other persons, proper care and attention.

(2)

If the designated medical officer certifies in writing to the appropriate authority that he is satisfied after thorough inquiry and consideration that in the interests of any such person as aforesaid residing in the area of the authority, or for preventing injury to the health of, or serious nuisance to, other persons, it is necessary to remove any such person as aforesaid from the premises in which he is residing, the appropriate authority may apply to a court of summary jurisdiction having jurisdiction in the place where the premises are situated for an order the next following subsection.

(3)

On any such application the court may, if satisfied on oral evidence of the allegations in the certificate, and that it is expedient so to do, order the removal of the person to whom the application relates, by such officer of the appropriate authority as may be specified in the order, to a suitable hospital or other place in, or within convenient distance of, the area of the appropriate authority, and his detention 5and maintenance therein:

Provided that the court shall not order the removal of a person to any premises, unless either the person managing the premises has been heard in the proceedings or seven clear days’ notice has been given to him of the intended application and of the time and place at which it is proposed to be made.

(4)

An order under the last foregoing subsection may be made so as to authorise a person’s detention for any period not exceeding three months, and the court may from time to time by order extend that period for such further period, not exceeding three months, as the court may determine.

(5)

An order under subsection (3) of this section may be varied by an order of the court so as to substitute for the place referred to in that subsection such other suitable place in, or within convenient distance of, the area of the appropriate authority as the court may determine, so however that the proviso to the said subsection (3) shall with the necessary modification apply to any proceedings under this subsection.

(6)

At any time after the expiration of six clear weeks from the making of an order under subsection (3) or (4) of this section an application may be made to the court by or on behalf of the person in respect of whom the order was made, and on any such application the court may, if in the circumstances it appears expedient so to do, revoke the order.

(7)

No application under this section shall be entertained by the court unless, seven clear days before the making of the application, notice has been given of the intended application and of the time and place at which it is proposed to be made —

(a)

where the application is for an order under subsection (3) or (4) of this section, to the person in respect of whom the application is made or to some person in charge of him;

(b)

where the application is for the revocation of such an order, to the designated medical officer

(8)

Where in pursuance of an order under this section a person is maintained neither in hospital accommodation provided by the Minister of Health under the National Health Service Act 1946, or by the Secretary of State under the National Health Service (Scotland) Act 1978, nor in premises where accommodation is provided by, or by arrangement with, a local authority under Part III of this Act, the cost of his maintenance shall be borne by the appropriate authority.

(9)

Any expenditure incurred under the last foregoing subsection shall be recoverable from the person maintained or from any person who for the purposes of this Act is liable to maintain that person; and any expenditure incurred by virtue of this section in connection with the maintenance of a person in premises where accommodation is provided under Part III of this Act shall be recoverable in like manner as expenditure incurred in providing accommodation under the said Part III.

(10)

The provisions of section twenty-seven of the National Health Service Act, 1946, and of section 45 of the National Health Service (Scotland) Act 1978] (which respectively require local health authorities and the Secretary of State to secure that ambulances and other means of transport are available for the conveyance of certain persons) shall apply to the conveyance of persons in respect of whom an order is made under this section as they apply to the conveyance of the persons specified in the said sections twenty-seven and.

(11)

Any person who wilfully disobeys, or obstructs the execution of, an order under this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale.

(12)

For the purposes of this section, the appropriate authorities shall be the councils of districts and London boroughs and the Common Council of the City of London, in Wales the councils of counties and county boroughs . . . , and in Scotland councils constituted under section 2 of the Local Government etc. (Scotland) Act 1994.

(13)

The foregoing provisions of this section shall have effect in substitution for any provisions for the like purposes contained in, or having effect under, any public general or local Act passed before the passing of this Act:

Provided that nothing in this subsection shall be construed as affecting any enactment providing for the removal to, or detention in, hospital of persons suffering from notifiable or infectious diseases.

(14)

Any notice under this section may be served by post.”

As the defendant noted, this section is concerned with the decision making process requiring local authorities to undertake an assessment and to make a decision. It does not turn it into a duty.

It is noteworthy that the Court of Appeal in the related case of St Helens Borough Council v  Manchester PCT [2008] EWCA Civ 931 seemed to take the same view in relation to the duty under section 29. I quote from paragraph 2 of that judgment:

“…the Secretary of State has now decided that PE, the woman requiring the care, is “ordinarily resident” in Manchester, not St Helens. Upon an assumption that the PCT's decision under challenge is upheld, this would mean that Manchester City Council is responsible for her future care unless of course the Secretary of State's decision were to be successfully challenged.”

As we know, there has been no challenge to the decision of the Secretary of State.

Dealing with the argument that there needs to be a change of circumstances, whilst I do not decide one way or the other as to 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 in 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 the position.

Turning to the “legitimate expectation” submissions. Mr Wolfe conceded that the decision was rational, but argues that it is unfair. For the reasons given by the defendant, it cannot be said, in my judgment, that St Helens have conducted themselves in such a way as to amount to an abuse of power. There is no sufficient evidence of conduct or practice which amounts to a clear and unambiguous representation. I do not effect to lay down any test by the use of those words. Mr Wolfe has also conceded, that the local authority is entitled to make reassessments, and that a local authority can change its policy, but argues that in this case, they should not have done. The fact is that St Helens undertook responsibility in July 1999 when PE moved to Manchester. No express undertakings were given. Regular assessment was undertaken. Implicit in that alone, is that the position might change with changing circumstances. Once circumstances had changed, St Helens got in touch with Manchester. The Official Solicitor was already aware of, and involved in, the “Best Interests” hearing and knew the views of the experts. St Helens gave proper notice of its intention to apply under the statutory scheme to the Secretary of State for the determination of ordinary residence. If the arguments advanced now had substance, one would have expected some reaction and opposition to the application, and in the light of the decision, challenge to that decision. The reality of the position, is that the interested party was not interested in who funded the package, so long as the package remained intact. The IP never made submissions at any stage until this claim, that the decision in September 2006 breached the IP’s “legitimate expectations”. It is only in the light of Manchester failing to give an undertaking that it will continue the package as presently operated, that, in my view, the IP comes to court.

As to the suggestion that, had St Helens indicated in 1999/2000 that it might only fund for a limited period of time, that PE might have said “I will only go to Manchester if you formally agree to maintain the funding”, this is both speculative and unrealistic. As was pointed out by Manchester, no responsible local authority could give that sort of commitment. Indeed, nor should it be held to ransom in that way, not least because there are competing demands on the authority’s budget. The IP was a party to the “Best Interests” hearing and was aware of what the experts recommended. To suggest that any “legitimate expectation” had been breached in the light of the recommendations of the experts is fanciful. Also to insist, as the official solicitor’s position seems to be at present, that there be no change to the care package, when it is conceded that re-assessment is not inappropriate, is also unrealistic. It seems apparent from the evidence, that the change in the package is something which is being worked towards, in the sense of the reduction of the need for such intense supervision and the working towards achieving greater autonomy for PE. Manchester will have to make its own assessment as to the provision necessary. As has been noted, it cannot give any undertakings to the IP as to the package remaining the same. But in any event, the Official Solicitor can always challenge the decision of Manchester, should the assessment not be in accordance with what is considered by the Official Solicitor to be in the best interests of PE.

The remaining question is whether, in the light of the change of circumstances, the decision to cease funding the package of care was unreasonable in the Wednesbury sense. As has already been noted, Mr Wolfe has conceded that the decision itself was rational. He was right to do so. The reasons for the decision are cogent and the decision cannot be characterised as unreasonable. In the light of the foregoing, I do not intend to deal with the issue of whether the court should determine which is the responsible local authority.

I end by echoing the sentiments of the Court of Appeal. It is unattractive that two publicly funded bodies should get engaged in expensive litigation in this way. Whilst without question significant sums of money are involved, to quote Scott Baker LJ --“the philosophy that incurring costs does not matter provided it comes out of someone else’s budget is to be discouraged”. Both sides have made offers which each has rejected. It seems to me in the light of the content of those competing offers that serious steps should be taken to reach accommodation, rather than engaging in further costly litigation at the expense of the public purse.