Neath and Port Talbot Council v Secretary of State for Health

HIS HONOUR JUDGE JARMAN:

This is a claim for judicial review which has at its heart the issue of which of two local authorities, the claimant, Neath, or the interested party, Worcestershire, should pay for the continuing care of a man now nearing 50 years of age (to whom I shall refer to as SM) who suffered severe brain injury in a road traffic accident in 2005. He now lacks mental capacity and requires 24 hours' care. The issue of funding in turn depends upon the authority in whose area SM is ordinary resident within the meaning of the National Assistance Act ("the 1948 Act").

At the time of his accident SM was sole resident in the area of Worcestershire. Because of his injuries he was admitted to a hospital there. Upon his discharge Worcestershire PCT accepted responsibility to pay for his continued health care under the National Health Service Act 2006 ("the 2006 Act") and arranged for him to receive such care in a nursing home in Birmingham. That did not prove successful and in an effort to find a suitable replacement he was moved to a home in Neath in March 2006.

During the next 3 years there was growing consensus amongst health experts that that home too was unsuitable for his care needs and in August 2009 he was moved to a third home in the area of Worcestershire where his needs are better met and where he is nearer his family. In May 2007 the Worcestershire PCT decided that he was no longer eligible for care under the 2006 Act but nevertheless continued to fund his placement in Neath until January 2009. Thereupon a dispute arose between Neath and Worcestershire as to where SM was ordinarily resident. This dispute was referred by Worcestershire to the defendant, the Secretary of State, for determination under the 1948 Act.

In the course of that referral Worcestershire submitted documents to the Secretary of State, including inter authority correspondence, in which it was accepted on its behalf by the legal assistant in Legal and Democratic Services that SM would ordinarily be resident in its area from the date of his return, namely August 2009. Such an acceptance was without express reference to section 24(5) of the 1948 Act (the deeming provision) which provides:

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

That omission, submits counsel for Worcestershire, was simply a mistake. Whether it was or not, it led to a focus in the reference to the period between January and August 2009. Neath submitted no documents in that reference, despite it being indicated to that authority, on behalf of the Secretary of State, that it if it did not, then the Secretary of State would proceed to make the determination on the basis of documentation submitted by Worcestershire, including a short statement of facts which the latter had drawn up. That statement continued the assertion that when SM moved back to its area in 2009 he became ordinarily resident there.

On the basis of that information the determination ("the first determination"), dated 14th August 2010 was made on behalf of the Secretary of State, which determined that SM was ordinarily resident in the area of Neath between January and August 2009. That first determination referred to a rebuttable presumption in force until 19th April 2010, under the statutory provisions, that a person will not acquire ordinary residence whilst in NHS funded accommodation. However, the factors which were considered particularly relevant were that SM had lived at the one address in Neath for 3 years and was physically present there on 1st February 2009, when NHS funding ceased. Furthermore, it was emphasised that there was no evidence that he regarded Worcestershire as his home, or that the move was intended to be temporary, or that, although his family continued to live in the Worcestershire area, the area was a main focus of his life during that period.

At paragraph 25 of the first determination the Secretary of State expressly referred to the assertion in the statement of facts by Worcestershire that SM once again became ordinarily resident in this area in August 2009. It referred also to the fact that he had been asked wholly to determine the issue of residence until that date and had done so. However, the paragraph continued:

Reference was then made to the deeming provision. It was said that the effect of this provision in light of the determination that SM was ordinarily resident in the area of Neath immediately before his move back to Worcestershire was that he remains ordinarily resident in Neath. The paragraph concluded:

Perhaps unsurprisingly that part of the first determination led Worcestershire to reconsider its position, but it was not until the 30th November 2010, over 3 months later, that a member of its Social Work and Physical Disabilities Team wrote to the principal officer of the Adult and Community Services in Neath, saying that accordingly Worcestershire sought the costs of funding from that date until the date on which funding was formally transferred to Neath. That led to further inter authority correspondence and disagreement, the upshot of which was that Worcestershire referred the dispute again to the Secretary of State but not until 2012. On this occasion Neath did make representations dated 31st May 2012, in which it expressly accepted the first determination and regretted not taking the opportunity to put forward representations at that time, whilst also disavowing any intent to seek to re-open the determination. It was stated that factors in relation to SM's ordinary residence before 10th August 2009 were also pertinent to such a question thereafter.

The letter went on to set out a number of factors to support Neath's case that the presumption against ordinary residence being acquired in NHS funded accommodation had not been rebutted, including that the move to Neath was pragmatic because of the difficulty in SM's previous placement, that there was no settled intention for him to remain in Neath, that his needs were quickly identified as not being sufficiently met in Neath but that the move was delayed due to funding dispute and, finally, that his family in Worcestershire always wanted him near them, so that they could visit him more often. The letter referred to a best interest assessment for SM and a letter dated 8th May 2009, but included a copy only of the latter which passed between the relevant directors of the authorities in which it was stated that the director in Neath had been informed by the Best Interest Assessor for deprivation of liberty under the Mental Capacity Act 2005 that while SM's liberty had been restricted, that was as a result of being inappropriately placed in a Neath home and of the dispute over funding rather than any inappropriate care on the part of the staff.

In a determination dated 12th September 2012 ("the second determination") the Secretary of State referred to the first determination and to paragraph 25 thereof. While noting that Neath were not seeking to re-open that, the Secretary of State indicated that there was in any event no basis for doing so and that Neath could have challenged it if not happy with it. Again, the reference was made to the deeming provision and to Neath's case. But such a provision does not apply in this case from the 11th August 2009 because Neath did not make provision for SM's return to Worcestershire and that there was no intention for SM to return to Neath. The Secretary of State determined however that those issues were not relevant to the deeming provision and that as SM was ordinarily resident in Neath when accommodation was first provided, under the 1948 Act, on the 1st February 2009, the deeming provision operates to deem ordinarily residence to continue for as long as such accommodation continues to be provided. In fact, an urgent authorisation for deprivation of liberty under the 2005 Act was made by the home manager in April 9 which was subsequently extended until August 2009. His impetus in doing so appears to have been the delay in the coming into force of regulations under the 2005 Act. The authorisation noted that SM did not appear distressed by the restriction on his liberty nor had he taken steps to resist or avoid them. In the application for such an authorisation, it was stated that SM's family felt that this was the right action and that they were hoping this would expedite his placement close to them.

A pre-action protocol letter and reply was exchanged in November 2012 and this claim filed on 12th December 2012. The grounds and subsequent oral permission were confined to challenging the second determination. As I understood counsel for Neath, it remains the position that no direct challenge is sought to be made to the first determination and that it is accepted that Neath could have, but did not, engage in that process. It is submitted, however, that its failure to do so was in the context of what was said to be an agreed position of the authorities that SM would become ordinarily resident on his return to the Worcestershire area in August 2009. However, it seems to me that if that is so, the likelihood is that neither authority was sufficiently focused on the deeming provision on its approach to the first determination.

The grounds of challenge are in essence threefold. Firstly, that since the Secretary of State only expressed a view as to ordinary residence after August 2009 in the first determination, there was no decision to challenge and in any event Worcestershire did not resile from its position until after the 3 month time limit for review had expired. Accordingly it was wrong of the Secretary of State to proceed in the second determination to say that the first determination should have been challenged. Moreover, it is irrational in the second determination to rely on the first determination when further information was available. Second, the Secretary of State acted unreasonably in relying wholly upon the first determination and then applying the deeming provision. What he should have done was to review all of the information then before him, including that in relation to further development of case law and in relation to meaning of "ordinary residence". Third, the Secretary of State unreasonably failed to consider or attach a peripheral weight to the fact that SM was subject to statutory authorisation of deprivation of liberty.

The Secretary of State, supported by Worcestershire, submitted in evidence that it is for the authorities to put documents before the Secretary of State for determination, and that he can and should act only on the information before him. He is entitled to express a view of the consequences in law of his determination. On the second determination he was entitled, if not obliged, to proceed to take the first determination as determinative of the dispute as to the period January to August 2009 and then to apply the deeming provision.

Statutory Framework

The relevant provisions of the 1948 Act fall under Part 3, which relate to local authorities services having the provision of accommodation. Section 21:

Section 24:

Section 24(6) at the time of SM's move to Neath provided that the patient in an NHS hospital would be deemed to be ordinarily resident in the area if he was immediately before admission to hospital. That provision was amended in April 2010, so that it applied to all NHS funded placements and not just to hospitals.

Section 32, "Adjustments between authority providing accommodation, &c., and authority of area of residence. Subsection (3):

"(3)Any question arising under this Part of this Act as to the ordinary residence of a person shall be determined by the Minister."

Guidance was issued by the Department of Health in March 1993, in respect of ordinary residence, under the reference LAC (937). It was intended to give guidance on the identification of the ordinary residence of people who require personal social services under the 1948 Act.

In paragraph 2 of that guidance it was noted that there was no definition of "ordinary resident" in the Act but the term should be given its ordinary and natural meaning, subject to any interpretation by the courts. The guidance went on:

"The concept of 'ordinary resident' involves questions of fact and degree, and factors such as time, intention and continuity, each of which may be given different rate to accord with the context, have to be taken into account."

Specific reference was then made to various provisions of section 24 of the 1948 Act including the deeming provision which was précised and section 24(6) and the presumption in relation to patients in any NHS hospitals. Some reference was then made to case law including the case of Shah v London Borough of Barnet and R v Waltham Forest London Borough Council ex parte Vale, which I shall come onto in due course.

In the final part of the Circular reference was made to the determination of disputes by the Secretary of State and a procedure was set out for seeking a determination. Before the Secretary of State approached the determination, it was said that one of the local authorities involved in the dispute should have provisionally accepted liability under Part 3 of the 1948 Act and be providing services. At paragraph 27 it said this:

"An agreed written statement of facts, signed by all the authorities involved, must be sent, together with the application for a determination. This agreement should be as detailed as possible, including

Copies of all relevant correspondence between the authorities concerned should be annexed to the agreed statement.

As from the 19th April 2010 the Ordinary Residents Disputes (National Assistance Act 1948) (Directions) 2010 came into force. Those regulations again set out the steps taken before referring a dispute to the Secretary of State. Paragraph 3 provides that the local authority of a dispute must ensure that they have taken all reasonable steps to resolve the dispute between themselves and in particular have complied with certain directions, including the contact within authorities who will take the leading discussions on behalf of the authority. In paragraph 5 the documents to be sent are set out including the statement of facts and again it was provided that each of the local authority's may in addition provide legal submissions including as to the ordinary resident dispute.

Case Law

There was no substantial dispute in relation to the principles to be applied in the submission before me. The meaning of "residence" or "ordinary residence" have been considered in a number of different fields. A widely cited case is that of R v LB Barnet ex parte Shah [1983] 2 AC 209, which was determined by the House of Lords in the field of education. Their Lordships held that the natural and ordinary meaning that words "ordinary residence" mean "that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration."

In LB Ealing v Mohamed [2002] AC 547, again the House of Lords considered the phrase in the field of homelessness. At paragraphs 18 to 19 Lord Slynn said this:

In a more recent case the Court of Appeal in R (Sunderland City Council) v SF & Others [2012] EWCA Civ 1232, held that the decision of the House of Lords in Mohamed was of greater assistance that in Shah interpreting the meaning of "residence" within the meaning of the Mental Health Act 1983.

In R(M) v LB Hammersmith and Fulham & Ors [2011] EWCA Civ 77, the case of Shah was again considered in the context of the Mental Health Act. In the context of the section which I am concerned with, namely section 32(3) of the 1948 Act, that was explained by Charles J in R (on the application of) London Borough of Greenwich v Secretary of State for Health [2006] EWHC 2576 (Admin). At paragraph 87, the judge said there that the uncertainly about the time that a person would spend in a particular placement could be one of the factors to show that that person was not ordinarily resident there.

In R v (on the application of) Cornwall Council v Secretary of State for Health [2012] EWHC 3739 (Admin), at paragraphs 54 to 56 Beatson J (as he then was) referred to the Shah decision and said this:

The determination of "ordinary residence" for a person who lacks mental capacity to decide where to live was considered in R v Waltham Forest London Borough Council ex parte Vale (The Times, 2nd February 1985). That case referred to two scenarios, first, where a person is so severely handicapped as to be totally dependent on a parent or guardian, and second, where the matter is considered as if a person is of normal capacity, taking into account all the facts of the case, without requiring the person himself to adopt the residence voluntarily.

It is also accepted before me that where a public authority is entitled to revise one of its decisions, and if so in what circumstances and to what extent, is a question that turns ultimately on a proper construction of the statutory scheme. However, in the absence of a provision requiring a different conclusion or fraud, the courts generally hold that determinations that decide legal rights cannot be revised (for example see Rootkin v Kent County Council [1981] 1 WLR 1186, 1195B to D.)

The grounds

I turn now to the first substantial ground in more detail. It is necessary, in my judgment, to set out at a little bit more length the second determination at paragraphs therefrom, in particular paragraphs 18 to 20 as follows:

I have considered Neath's submission in respect of the period from the 11th August 2009, which is the period in dispute. They state that the deeming provision in section 24(5) of the 1948 Act does not apply from that date because Neath did not make arrangement for SM's return to Worcestershire. They also state that to apply the deeming provision in this case would not be appropriate because there is no intention for SM to return to Neath as all his family ties are in Worcestershire.

These issues are not relevant to the application of the deeming provision."

Then the provision is set out:

Accordingly it is submitted on behalf of Neath that the Secretary of State in the first determination had no power to make a determination or even express an opinion as to where SM was ordinarily resident after August 2009 and by seeking to do so, the Secretary of State undermined the guidance which makes local authorities responsible for determining such issues themselves and allows a reference to the Secretary of State in determining the question arising only as a last resort. Since Worcestershire, it is submitted, did not resile from the acceptance to be responsible for SM until 3 months subsequent to the Secretary of State's decision, the time for a challenge by way of judicial review by Neath had passed. Since that change of view, the submission continues, created a dispute as to where SM was ordinary resident, the correct approach was to refer the matter back to the Secretary of State who did not suggest at that stage that there was anything inappropriate in doing so. It is argued therefore that he is wrong now to say that a failure to challenge his first determination, but instead to challenge the second, amounted to an abuse of process. Further, it is said that because the first determination was made on the information then provided and that there was no indication the placement was temporary, that subsequently documents had been put beofre the Secretary of State show the placement was temporary and that that involved a deprivation of liberty, then it was irrational of the Secretary of State simply to rely upon the first determination in reaching the conclusion in his second determination because there was fresh information that required him to consider the totality of his approach.

In my judgment, it is likely that neither authority gave sufficient nor perhaps any thought to the deeming provision in requiring the first determination, even though this was clearly referred to in the guidance. If either authority had given such consideration, it is difficult to see why this was not dealt with expressly. I accept that Worcestershire gave clear indication to Neath that it was accepted that SM would be ordinarily resident in its area on return in August, but was at the same time saying that he was ordinary resident in Neath for the previous 6 months or so. If Worcestershire were right about that, then on the face of it at least the deeming provision would apply. Assuming for present purposes that it may be open for authorities to agree an arrangement between themselves, which is different to that which the deeming provision envisages, in my judgment that is not what occurred here. What Worcestershire was saying was not that it was accepting a consequence which in law would not follow if its argument that SM was ordinarily resident in Neath for the prior 6 months or so were determined in its favour, as indeed it was in the event. In those circumstances, in my judgment, it was at least open to the Secretary of State to set out his view of the situation in the way that he did. He did no more than that. That view, I am satisfied, formed no part of the determination. I am not satisfied that was irrational in those circumstances for him to say in his second determination that the first determination stood. He referred to the fact that Neath expressly indicated that it was not seeking to re-open the first determination. I am prepared to accept having regard to the wide ambit of section 32 of the 1948 Act and in particular to reference to "any question" that might include the question of the appropriate approach, where two authorities have not had sufficient regard to the deeming provision and one authority had not engaged the process, as under the guidance the Secretary of State was entitled to be expected to do. But it does not follow, in my judgment, that it was irrational of the Secretary of State not to review all of the facts in the second determination. In my judgment, it was open to him to take a view that the first determination stood and to apply the law on the facts which he had determined in 2010.

Turning to the second ground, it is submitted that the Secretary of State acted unreasonably in relying wholly upon the first determination, because there was fresh evidence that should have led him to review all of the relevant facts and the weight to be attached to all of those facts and, in particular, whether the accommodation was settled and/or voluntary. Further, there had been developments in the law, namely the Sunderland and subsequent decisions.

It is submitted that the Secretary of State was not bound to follow this expression of opinion or indeed his first determination in so far as he was asked to determine the second application to all the facts. It is submitted that he acted unreasonably in failing to identify the relevant factors to a determination of ordinary residence and/or the weight to be given to them on alternative relief failed to give adequate reasons.

It is further submitted that it cannot be deduced from the second determination whether the Secretary of State considered that material not to be relevant, as appeared in the determination or whether he considered it to be insufficiently weighty in comparison on the others.

I do not accept these submissions. In my judgment the second determination is reasonably clear and the Secretary of State dealt with the first determination, as he was entitled to, on the information which was put before him by the authorities. He dealt specifically with the arguments of Neath in the paragraphs I have set out (paragraphs 18 to 20). He referred specifically to the fact that Neath were not seeking to open the first determination. He made his comments in relation to a challenge only if Neath were seeking to re-open that decision. Even in relation to the second determination, the information provided by Neath, in my judgment, was not full; it referred to best interest assessment of SM in closing. It referred to a letter, as I say, of May 2009. from the Director for Health and Social Services at Neath, to his counterpart in Worcestershire, which said as follows:

In my judgment, on the information before the Secretary of State in the second determination there is no error of law displayed. In relation to the deprivation of liberty, again, I am of the judgment that the Secretary of State was in fact entitled to make the findings he did on the information then before him.

Accordingly, in my judgment, this claim fails. It is very unfortunate in this case that so much money has been expended in litigation including three parties, each of which has a responsibility to the public purse, arguing about who should fund the care of a person in need, especially in the present economic climate when departments and local authorities' budgets are being reduced. It is likely, in my judgment, that much, if not all of this cost, could have been prevented if adequate care had been taken to supply documentation for the first determination and, having regard to the guidance and in particular the deeming provision. That, in itself, may have involved a bit more cost but such a cost pales into insignificance when compared to the cost of this litigation and the public who is paying for each of the parties may well have cause for concern.

I am grateful to all three counsel for the clear and focused way in which they have presented their arguments.

HIS HONOUR JUDGE JARMAN: Is it still intended a draft order will be placed by 4.00 pm Friday? Thank you very much. If there is no agreement on certain points, both parties can set out their reasons for disagreement and I will make a determination of the outstanding disagreement. Thank you very much.