Cardiff County Council, R (on the application of) v The Welsh Ministers

THE DEPUTY JUDGE: The claimant, Cardiff City Council, to which I shall refer to as "CCC", seeks to challenge a decision of the Welsh Ministers, dated 14th December 2007, that CCC rather than the Royal Borough of Kensington and Chelsea ("RBKC") is responsible for the funding of the care of a woman I shall call EK. She has cerebral palsy and significant hearing impairment and was originally in receipt of care paid for by RBKC under the National Assistance Act 1948.

In July 1994, for reasons which are not material, RBKC secured a placement for her in a care home in Cyncoed, Cardiff, which was registered under the Registered Homes Act 1984. Shortly afterwards she met her current boyfriend, TP. He has physical disabilities and himself requires care.

In 1992 they both moved to a residential care home in Grangetown in Cardiff and EK continued to have about 28 hours staff support each week as well as sleep-in staff support through the night. That accommodation and care, paid for by RBKC, was provided by Scope, a registered charity for people with cerebral palsy.

Whilst for most purposes EK was by now ordinarily resident in Cardiff, under the deeming provisions of the statutory scheme, set out in the 1948 Act, she was deemed to continue to reside within the area of RBKC. That is because that is where she resided immediately before residential accommodation was provided to her under the 1948 Act. However, RBKC contended that that changed on 16th December 2002 when EK took a tenancy of and moved into a one bedroom flat in Cowbridge Road, West Cardiff, owned by Cadwyn Housing Association. Her rent is paid for by way of housing benefit. The care which EK received remained at substantially the same level. TP took a tenancy of a one bedroom flat next door. Between the two is a staff bedroom which has access to both flats where sleep-in staff support continues to be provided.

The care continued to be provided by Scope and paid for by RBKC. Some of this funding was provided by way of a scheme known as "Supporting People". But towards the end of 2005, RBKC was informed that some of that funding would be reduced. Moreover the care was no longer going to be provided by Scope but another charity, Ategi. RBKC offered to EK a residential placement within its area, but she declined on the basis that she wished to remain in Cardiff with TP. In November 2005 RBKC wrote to CCC saying it proposed to discontinue the care package for EK on the ground that she was no longer resident in its area. CCC objected on the basis that EK's needs had not changed and that the residential accommodation under the 1948 Act can be provided by private organisations such as a housing association. Accordingly, said CCC, the deeming provisions still applied.

The Welsh Ministers preferred the argument of RBKC. CCC challenges that decision as irrational and unreasonable and as misconstruing the provisions of the statutory scheme, as interpreted by the courts. Moreover it is said that the Welsh Ministers failed to hold that CCC had a legitimate expectation that the funding given by RBKC would continue given the continuation of circumstances.

The matter first came before me in January 2009. My understanding was that it was agreed that any decision I made would not affect the level of care given to EK. Accordingly, she was not a party to these proceedings or represented or indeed aware of the proceedings. During the opening it emerged that CCC could not give an assurance to that effect without carrying out an assessment of the needs of EK. Accordingly the hearing was adjourned for that assessment to be carried out which in due course it was. That showed that, if anything, CCC assessed EK's needs as having increased. On the basis that any decision of this court would not therefore change the level of care to which she was entitled, but that the decision would determine only who pays for that care, all parties are agreed that it is not appropriate or desirable that EK should be joined in the proceedings.

Before turning to the decision of the Welsh Ministers in greater detail, it is necessary to set out the provisions of the statutory scheme and also to say something of its context. As originally enacted, section 21(1) of the 1948 Act imposed on local authorities the duty to provide two types of accommodation: residential accommodation for the elderly and the infirm and also temporary accommodation for those in urgent need of it. By section 29(1) of that Act, such authorities were also required to provide a range of welfare services for disabled people. That obligation was later expanded by the Chronically Sick and Disabled Persons Act 1970.

The scheme was substantially altered by the National Health Service and Community Care Act 1990, the object of which was to promote professional assessments of people's needs rather than to pay for them to enter residential homes. Section 21(1) of the 1948 Act was amended to bring within its ambit persons with illness and disability. Its affect was to import the residential component of the services for the care of the sick under the National Health Act 1977. The aim was to bring them all within the same assessment and charging regime.

I now set out the statutory provisions. Section 21(1)(a) of the National Assistance Act 1948 reads:

Judicial interpretation of section 21(1) of the 1948 Act has taken place in claims for residential accommodation under that section by asylum seekers who might otherwise not be entitled to have accommodation provided to them by local authorities. I bear that in mind. But the observations made in the authorities are not limited to such claims.

There are three main authorities to which my attention was drawn. The first is the case of Abdul Wahid v The Mayor and Burgesses of The London Borough of Tower Hamlets[2002] EWCA Civ 287. That was a case where the claimant suffered from schizophrenia and lived with his wife and eight children in a two bedroom flat on the ground floor of a large residential block owned by that council. The claim was that he was entitled to better accommodation as a person in need of care and attention under section 21(1) of the 1948 Act.

In dealing with the appeal to the Court of Appeal against the dismissal of the claim for review, Pill LJ observed that it was for the authority to make a decision of whether an applicant is in need of care and attention which is not otherwise available to him, subject to the possibility of challenge by way of judicial review on any of the usual grounds. Pill LJ observed that better accommodation would no doubt be advantageous to the claimant but a decision that the overcrowding of the present accommodation did not create a need for care and attention was not irrational and was properly reached. Hale LJ agreed that the appeal should be dismissed for the reasons given by Pill LJ. At paragraph 30, she said this:

The section was again considered, this time by the House of Lords in Regina (Westminster City Council) v National Asylum Support Service [2002] 1 WLR, page 2956. That involved a woman who was a wheelchair user, who claimed political asylum. The local authority took view, that it was not obliged to pay for accommodation with wheelchair access under section 21(1)(a) of the 1948 Act because the national asylum support services was obliged to pay for that accommodation pursuant to its powers under section 95(1) of the Immigration Asylum Act 1999 to provide support for destitute asylum seekers. NASS refused to pay on the grounds that the local authority had a duty under section 21(1)(a) of the 1948 Act. The judge and the Court of Appeal dismissed the local authority's application for review and the House of Lords also dismissed the appeal. Lord Hoffmann at paragraph 26 said this:

Having dealt with the interpretation of the section in question, I now turn to the decision of the Welsh Ministers in more detail. The dispute between the respective local authorities was referred to the Welsh Ministers under section 32(3) of the 1948 Act. RBKC had referred the case to the Secretary of State for Health. Under the terms of an agreement concluded between the National Assembly for Wales, whose functions were by then performed by the Welsh Ministers under the provisions of Government of Wales Act 2006 and the Secretary of State under section 41 of the Government of Wales Act 1998, the determination was made by the Welsh Ministers as EK was resident in the Welsh authority's area at the time the dispute was referred.

The determination was made on the basis of a number of documents submitted, together with an agreed statement of facts. This had been drafted by counsel for CCC, who appeared in this case and agreed to by counsel for RBKC who also appeared in this case.

The facts were summarised that EK had learning difficulties which resulted in behavioural and emotional difficulties. The personal care which she required includes assistance with mobility and communication and therefore, according to the determination, incorporated assistance with bodily functions. The determination recorded that on 16th December 2002 EK moved to a new flat and the way that EK's needs for accommodation and care and attention were met changed. It was recorded that she had move into the flat having entered into a tenancy agreement and the landlord was a housing association. At paragraph 10 the determination continues as follows:

The determination was that EK ceased to be provided with accommodation by RBKC when she moved into Cowbridge Road West, Cardiff. It was observed that CCC's submission was in essence that there was a continuous chain of provision of accommodation by RBKC, in fulfilment of its duty under section 21 which was unbroken by the move from the residential care home in Grangetown to the tenancy with a housing association in Cowbridge Road West.

At paragraph 12 the determination provides as follows:

The statement of facts to which I have referred included the assertion that after 16th September 2002, EK was in receipt of substantial personal care. That, as counsel now accept, was rather lose language. RBKC had carried out an assessment of EK's needs in June 2000. The following were the pertinent findings in respect of EK's needs: Firstly, that those needs were complex. EK was living semi independently but was hoping to move to a new property and obtain her own tenancy. She was aware that the current tenancy of Scope was going to be terminated and therefore needed to find a new property. Secondly, EK was very able in all her personal care and requested no help from anyone in that area. It was noted that the occupational therapist felt that there was a risk of EK falling when she was getting into and out of the bath. Thirdly, she needed help with her mobility and used a wheelchair when she was out of the property. Fourthly, accordingly, her need indicated a ground floor property, or a property with a lift. Fifthly, EK herself would like less involvement from staff. Finally, she wanted to remain with her boyfriend and in the Grangetown area of Cardiff.

Surprisingly no mention in that assessment was made of the sleep-in arrangements. Those had always been put into place. EK's needs had not changed. From a timetable of uncertain date, it was clearly envisaged that this would be continued, as indeed it has been. Further, the assessment that was carried out in 2005, which recorded no substantial change in EK's needs, recognised the sleep-in arrangements.

The statement of facts also referred to two important letters. The first is from the housing and social services manager of RBKC to the project manager of the Stepping Stones Project in Cardiff. It is dated 8th September 2000 and refers to EK. The letter says this:

By letter dated 20th November 2000, Scope's project manager wrote to a social worker in the department of social services at RBKC, referring to EK and the proposed move to her own accommodation. The letter includes this paragraph:

Against that background there are a number of challenges made to the decision of the Welsh Ministers. The first is that it is clear from those letters that RBKC made arrangements for the provision of accommodation for EK by Scope, within the meaning of section 21(1)(a). It is accepted that RBKC could not delegate it duties under that section to Scope. It is submitted, however, that on a fair interpretation of those letters RBKC appointed Scope as its agent for the purposes of finding accommodation as opposed to any decision-making function. It was further submitted that there has over the years been a shift of focus from the provision of accommodation to the assessment of needs and the passages in the M case, which I have cited above were heavily relied upon.

Against those submissions, it was submitted on behalf of the Welsh Ministers and RBKC that accommodation is no longer provided pursuant to section 21(1)(a). Care is provided by reason of section 29 of the 1948 Act, so that the Welsh Ministers were entitled to find that the provision of care and accommodation has been, in the words of the Welsh Ministers, disaggregated. I remind myself that Parliament has entrusted the determination of the question of ordinary residence to the Welsh Ministers. That involves a consideration of section 24(5) which in turn requires determination of whether a person is provided with residential accommodation, under section 21(1). That determination is reviewable on judicial review grounds. But I must not substitute my decision for that of the Welsh Ministers. I am concerned more with the decision-making process than with the merits of the decision.

I was referred to guidance which is applicable in this situation. It is guidance issued by the then Welsh Office on 26th June 1993 with reference WOC41/93 and deals with the question of ordinary residence for the purposes of personal social services. It is addressed to the chief executives of county councils in Wales, the directors of social services, the chief executives of the health authorities and NHS Trusts and family health services authority. In paragraph 10 this is said:

In my judgment, the Welsh Ministers were entitled to find that EK is no longer provided with accommodation under section 21(1)(a). The determination is to be read as a whole in a common sense way and not with an over critical eye. The rationale for the decision is, in my judgment, clear. The Welsh Ministers took the view that there was, in their phraseology, a break in the chain of causation. In my judgment that decision was not irrational, or unreasonable, or wrong in law, but a decision to which the Welsh Ministers were entitled to come.

In my judgment, it is not the case that because EK’s needs did not change, it must follow that residential accommodation continues to be provided under section 21(1)(a). An example was given in argument which is also contained in draft guidance on the issue which is presently out to consultation in England. The example is of a young adult with needs of care and attention, living with parents, at home, where care cannot be given in that setting. The scenario continues that residential accommodation might then be given to that young adult, under section 21(1)(a), so that care, otherwise unavailable may be provided. The parents then move to a larger home, for example, which has easy wheelchair access on the ground floor where the care can be given and the young adult returns to live with her parents. The care which she needs is then provided in that home. The needs remain constant but it could not be said, it is argued, in those circumstances that residential accommodation is provided under section 21(1)(a). In my judgment, that example is analogous to the present one and for the reasons I have given the Welsh Ministers were entitled to so find.

Secondly, submits CCC, the Welsh Ministers were wrong in paragraph 13 of the determination to say that there was a change in the nature of the need of EK. Taken in isolation that sentence may well suggest that there was a material flaw in the decision-making process. But reading it as a whole, it is tolerably clear, in my judgment, that what was meant was the way in which the needs were met had changed. That much is stated in terms in paragraph 10.

Thirdly, it is submitted on behalf of CCC that the reference in paragraph 13 of the determination to accommodation being "otherwise available" is at odds with the interpretation of the subsection given by the House of Lords in the M case. On behalf of the Welsh Ministers it was accepted that the phrase "otherwise available" in paragraph 13 must refer to the words of sections 21(1)(a) and accordingly that the sentence taken by itself appears to be at odds with the interpretation given by the House of Lords in that case. Again, however, in my judgment, one must look at the context and in particular the sentence before and after the one complained of.

It is tolerably clear from that context that the Welsh Ministers approached the determination on the basis that the need for accommodation had changed but that the need for care had not. It is clear in this case that care was not otherwise available. It was not contended that it was. Accordingly, in my judgment, there is nothing in this third challenge.

Fourthly, it is said that the Welsh Ministers in referring to personal care misinterpreted the facts and counsel fairly accepted that some blame might attach to the agreed statements of fact in this context. But it is clear, in my judgment, from paragraph 2 of the determination that the Welsh Ministers took personal care to mean assistance with mobility and communication. EK undoubtedly has the need for such assistance. In my judgment, it is tolerably clear that the Welsh Ministers did not proceed on the basis that EK had a need of care of her person because it is clear from the source documents and the assessments that that was not the case. Moreover, this issue only arises in the context of section 26 of the 1948 Act, which all parties agree does not apply in this case, albeit that they give different reasons. In my judgment, that is not a material error.

That leads on to the next challenge which relates to section 26. On behalf of CCC it is now accepted that the Cadwyn property is not managed by either CCC or RBKC, so the property does not come within 26(1). In my judgment the property is not a registered care home, so section 26(1)(a) does not apply either. Again, in my judgment, there is no material error of law in the determination of the Welsh Ministers' decision. For the reasons I have already given, it is clear that the essential basis for the determination was the change of accommodation on 16th December 2002 and that the Welsh Ministers had substantial grounds for coming to the determination which it did.

Next, it is said that that the determination of the Welsh Ministers does not give sufficient recognition to the Convention of the Rights of Persons with Disabilities. That arises in the context of criticism of a 1996 Audit Commission report about the plethora of guidance concerning the assessment process. The recommendation of that report was as follows:

Article 19 of the Convention which was signed by the United Kingdom on 30th March 2007 says this:

There has been continued academic criticism of the extent to which that ideal has been put into operation. Guidance was however given in Wales in September 2002. The guidance is entitled “Health and Social Care for Adults; creating a unified and fair system for assessing and managing care". The guidance was issued under section 7(1) of the Local Authority Social Services Act 1970. It updated and consolidated the former Welsh Office guidance “Management Care” in April 1991 and it provided the required guidance for health bodies to ensure compliance with a target set out in “Improving Health in Wales, a plan for the NHS with its partners.”

Chapter 5 deals with fair access to care services for all adult groups. In setting the eligibility criteria, paragraph 5.16 of that guidance provided that local authorities should use a framework which is then set out for determining their eligibility criteria. This should be developed in conjunction with statutory health bodies and the framework should assist in the development of unified eligibility criteria over time. Then there is a list of criteria set out.

As I understood the position, it was accepted on behalf of CCC that, in terms of assessment for needs under section 21 of the 1948 Act, under section 29 of the 1948 Act and under section 2 of the 1970 Act, that that guidance is binding upon local authorities in dealing with the assessment criteria. In my judgment, therefore, there is no substance in the complaint that the determination of the Welsh Ministers was in breach of the rights given by the Convention.

Finally, it is said that CCC had a legitimate expectation that RBKC would continue to provide the funding arising out of the correspondence which took place in September and November 2008. It is said that that gave rise to an expectation of CCC that such funding would continue.

The issue of legitimate expectation was raised before the Welsh Ministers. It was submitted on behalf of the Welsh Ministers that it was no part of their determination to make a finding on such legitimate expectation. What they had to do was carry out their statutory function of determining ordinary residents under section 32(3) of the 1948 Act. In my judgment, there is force in that submission.

In any event, EK does not make a complaint about legitimate expectation. This is a dispute essentially between two local authorities as to who should pay for her needs and, as I have indicated, it is now confirmed that, if the challenge to the Welsh Ministers' decision fails, the care which she is given will be at least that which is given at the moment. In my judgment, therefore, there is no room for a finding, still less a requirement of the Welsh Ministers to make one, that there was a legitimate expectation that that funding would continue to be provided by RBKC.

In so far as it might be suggested that the care under section 29 of the 1948 Act is somehow less certain, less beneficial, or adequate to EK, then I reject that submission. It is clear, in my judgment, from the statutory provisions that I have referred to and the guidance for assessment that there is a reasonably clear workable and fair guidance for the assessment of EK's needs, whether that assessment is carried out under section 21 or section 29.

Indeed, if I may say so, the submissions of CCC on legitimate expectation seemed, in the end, to focus more upon a challenge on the basis that EK did not have or did not participate in adequate consultation in relation to the intended move in 2002. It is the case that the intricacies of who should provide her funding were not discussed with her. Of course, these very difficult issues sometimes have to be tackled through the medium, if necessary, of a special advocate.

On behalf of RBKC it was submitted that the duty of consultation and any consultation carried out under that duty must be proportionate. In this particular context it was clear, in my judgment, from the assessments carried out that EK maintained throughout a consistent wish, firstly, to stay in Cardiff, secondly, to stay in or near the Grangetown area where she had lived for some years, and thirdly, to stay with TP. She had been offered suitable placement in the area of RBKC and had refused to take that up.

It is, in my judgment, putting the requirement too highly to say that, in those circumstances, the intricacies of funding should have been explained to her. It is true that at stage, until the assessment carried out by on behalf of CCC in 2009, it could not have been known precisely whether any decision would have affected adversely the funding available for her care. In the event, we now know that it will not. In my judgment it must have been reasonably apparent on a change from the accommodation in Grangetown to the nearby area of Cowbridge Road,West that such an adverse effect was unlikely, and it was reasonable for the authorities to proceed on that basis.

Accordingly, for all those reasons, I am not satisfied that the grounds for challenging the decision of the Welsh Ministers are made out.

THE DEPUTY JUDGE: Is it still intended that submissions on costs should be given in writing in seven days?

MR WILLIAMS: Fourteen was the time period that was mentioned yesterday.

THE DEPUTY JUDGE: My recollection was that it was seven.

MR WILLIAMS: In the view of judgment I do hope in fact we can come to some agreement on costs and that failing on that we will make submissions.

THE DEPUTY JUDGE: If you are saying that seven would frustrate attempts to agree, then I am quite willing to say 14, as long as there is a reasonable prospect of agreement. What I do not want, Mr Williams, is for this matter to drag on and to have submissions submitted some time in the future when the details have receded.

MR WILLIAMS: I can see that had the decision gone the other way, because of what happened in January, things may have been slightly more difficult. In view of the decision I would hope certainly within seven days we will know whether agreement can be reached. It would be unfortunate if we were half way through those submissions when that occurs. I would ask for 14 days my Lord.

MISS YEOMAN: My Lord, the local authority has no objections to that.

MR BELL: My Lord, we do not object to that.

THE DEPUTY JUDGE: Right, I will direct that within 14 days the parties shall submit either a draft consent order on the issue of costs or written submissions on that issue. Then I will make a determination in writing on that issue and send that to the parties. Is there anything else?

MR WILLIAMS: Can we thank your Lordship for the hearing yesterday.

THE DEPUTY JUDGE: Thank you very much.