Barking And Dagenham, R (On the Application Of) v Secretary of State for Health

The Claimant in this case is the London Borough of Barking and Dagenham. The local authority challenges a decision by the Defendant, the Secretary of State for Health, that the second interested party, HR, was ordinarily resident in its area from at least June or July 2013, if not earlier, for the purposes of the provision of care services to him. As a consequence, Barking assumes responsibility for funding HR’s care which is estimated to be £119,600 per annum. Barking contends that HR’s care should be funded by the London Borough of Redbridge, the First Interested Party, the authority for the area where HR grew up and was physically resident until August 2012, until he moved to accommodation in Barking.

HR has autism and a moderate learning disability. He requires support with everyday living. Prior to August 2012, HR resided with his parents in Redbridge. He received outreach care at home each week with respite care at accommodation in Barking. It is common ground that HR’s care was provided and funded at this stage by Redbridge, pursuant to section 29 of the National Assistance Act (“NAA”) which makes provision for care in the home. However, home life was tense and HR came to prefer staying at the respite care facility. In August 2012, his parents indicated they did not want him to return from a planned period of respite care at the Barking accommodation so HR remained there whilst Redbridge reviewed matters. By April 2013, Redbridge had decided that the best course of action was for HR to remain at the Barking accommodation pursuant to an arrangement known as a supported living placement whereby he received personal support at the property. A tenancy agreement was signed on HR’s behalf by his parents for the property and his rent started to be paid by way of housing benefit from Barking.

The central question raised in these proceedings is whether Redbridge came under a duty to provide HR with residential accommodation under section 21(1)(a) of the NAA during the period August 2012 to April 2013. If so, Redbridge would remain responsible for HR’s care, by virtue of a deeming provision in section 24(5) of the NAA whereby HR would be deemed to be resident in Redbridge, despite his physical presence at the accommodation in Barking.

The specific issues that arise are as follows:

As will be apparent from the summary above, issue 2 does not arise unless the Claimant succeeds on issue 1 in establishing that the section 21 duty was triggered during the period August 2012 – April 2013.

For the reasons set out below, in my judgment, the duty under section 21(1)(a) was not triggered in the circumstances of this case. Prior to August 2012, Redbridge had provided HR with appropriate care and support in his home. He moved to the Barking accommodation in August 2012 because he and his parents had expressed the clear wish that he do so, not because his care needs had changed. He continued to receive the care and support he had previously received at home, at the Barking accommodation. The period between August 2012 – April 2013 was simply an interim period whilst Redbridge assessed the implications of HR leaving the family home, before deciding that the interim position should continue. The claim must accordingly be dismissed.

HR is aged 24 years old. He grew up with his parents at an address in the area of the London Borough of Redbridge. HR has autism and a moderate learning disability. He requires support with all aspects of personal care including bathing, dressing and grooming. He requires support with everyday living skills such as meals; medications; medical appointments; finances and shopping. More generally, he needs help to communicate his needs and wishes and to maintain social support and stimulation and understand what is going on around him.

Prior to August 2012, HR resided with his parents in Redbridge. He received outreach care each week from two care providers (Hope Superjobs and Overzest Limited). He also received 28 days respite care per year at a property in Barking, referred to as ‘the Barking accommodation’ supported by care providers from Overzest. This care was provided under section 29 of the NAA and funded by Redbridge.

Over the course of time, HR came to prefer spending time in the Barking accommodation and clearly indicated that he wished to live there, supported by his carers from Overzest. He had become frustrated at home, reportedly hitting his mother on occasion. By August 2012, matters came to a head. His parents had reached the end of their tether. Whilst HR was staying at the Barking accommodation as part of his allocated respite care, his parents indicated they did not want him to return home. In late August, HR’s independent advocate emailed his Redbridge social worker to ask if it was possible for HR to stay at the Barking accommodation whilst a more thorough exploration was done of the different accommodation options available for him. HR remained at the property.

From August 2012 to April 2013, Redbridge undertook a review to decide how to resolve matters. The views of HR’s parents; his independent advocate; a clinical behavioural specialist; a psychiatrist and his care providers were fed into the review. Following the review it was decided: firstly that HR could no longer be supported at home; secondly HR was clearly indicating that he wished to live at the Barking accommodation. Thirdly it would be in HR’s best interests for what is known as a ‘supported living placement’ to be put in place at the Barking accommodation to ensure that he could receive the level of support he needed.

In April 2013, a tenancy agreement in respect of the Barking accommodation was signed on HR’s behalf, by his father and mother. HR’s rent for the accommodation started to be paid by Barking by way of Housing Benefit.

On 23 April 2013, HR’s social worker wrote to Barking to notify the local authority that HR had entered into a tenancy at the Barking accommodation and that the arrangement consisted of a supported living arrangement managed by Overzest Community Services. Barking and Redbridge entered into correspondence because Barking was not satisfied that HR was ordinarily resident in its borough. In due course, the parties referred their dispute to the Secretary of State for a determination under section 40 Care Act 2014 as to where HR should be regarded as ordinarily resident for the purposes of his care provision.

On 6 October 2015, Mr Richardson, on behalf of the Secretary of State for Health, made a determination that HR had been ordinarily resident in Barking from June or July 2013 if not earlier, that is to say, either from September 2012, when he began residing at the Barking accommodation or April 2013 when a tenancy agreement was signed and housing benefit started being paid.

Barking challenged the determination and requested a review. On 5 February 2016, Mr Richardson upheld his initial decision. Accordingly, Barking sought judicial review of the Secretary of State’s decision in April 2016. Permission to apply for judicial review was granted by King J following an oral permission hearing on 10 May 2017.

Proceedings have been instituted in the Court of Protection in relation to HR’s capacity to decide on his living arrangements but Barking does not raise any issues of capacity in these proceedings. The Official Solicitor, on behalf of HR, takes no active stance in relation to this claim on the basis that the dispute relates to funding and HR’s care on the ground is unaffected by the dispute.

Part 3 of the National Assistance Act 1948 imposes duties on local authorities to provide care for vulnerable adults.

Section 21 is under the heading “Duty of local authorities to provide accommodation”. It provides so far as is material:

“(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;

(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 …

(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.

(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 2006.”

Section 24 provides so far as is material:

“Authority liable for provision of accommodation.

(1)

The local authority [empowered]  under this Part of this Act to provide residential accommodation for any person shall subject to the following provisions of this Part of this Act be the authority in whose area the person is ordinarily resident.

(5)

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

Section 24(5) appliesto residential accommodation provided under section 21 of the Act. It does not apply to services provided under section 29.

Pursuant to section 26, local authorities can, instead of providing accommodation themselves, make arrangements for the provision of the accommodation with a voluntary organisation or with any other person who is not a local authority. There are however restrictions on those arrangements. Subsection (1A) prohibits arrangements being made by a local authority to provide residential accommodation together with personal care under section 21 of the NAA with any organisation other than a registered care home.

Section 29 is headed ‘Welfare arrangements for blind, deaf, dumb and crippled persons, etc” and provides as follows:

“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.”

Subsection 4 lists the arrangements that may be provided under the section. Section 2 of the Chronically Sick and Disabled Persons Act 1970 extended the scope of services to be provided to include, for example, the provision of practical assistance and meals in the home. Care under section 29 can be referred to as care in the community and includes care at home.

The powers under section 21 and section 29 are converted into a duty on local authorities in relation to persons ordinarily resident in their area and/or others in urgent need (see direction of the Secretary of State Department of Health Circular No LAC 93(10) Appendix 1 para 2(1)(b) & Appendix 2 para 2(1)).

The Department of Health has issued guidance on ordinary residence which is titled ‘Guidance on the identification of the ordinary residence of people in need of community care services England’. The guidance considers the position of people moving into independent living accommodation who have mental capacity, noting that pursuant to Government policy many people who require social care support are choosing to move from traditional residential care settings to independent living accommodation (paragraph 92). Paragraph 93 explains that when a person enters independent living accommodation, they usually sign a tenancy agreement for their own house or flat, paid for by housing benefit, with the provision of community care services and other support as necessary. Such arrangements, it is stated, “would not normally constitute the provision of accommodation under section 21 of the 1948 Act”. It is not disputed that the guidance is an expression of the policy applicable to the implementation of the NAA. It is however also common ground that the guidance cannot dictate the proper construction of the NAA.

Caselaw has established that the duty to provide accommodation under section 21 NAA is dependent upon three pre conditions being satisfied These are: a) the person concerned must be in need of care and attention; (b) the need for care and attention must arise by reason of age, illness, disability or “other circumstances”; (c) the care and attention which is needed must not be available otherwise than by the provision of accommodation under section 21. Normally, a person needing care and attention which could be provided in his own home or in a home provided by the local authority under the housing legislation is not entitled to accommodation under section 21 (Lord Hoffman in R(Westminster) v National Asylum Service [2002] 1 WLR 2956).

Accommodation under section 21 of the Act is accommodation of last resort when other statutory avenues for providing the requisite care have failed (Wahid v TowerHamlets [2002] EWCA Civ 287).

It is for local authorities, not the Court or the Secretary of State, to decide whether a person has a need for care and attention which can only be met by the provision of accommodation under section 21, subject to challenge by way of judicial review (Wahid v TowerHamlets [2002] EWCA Civ 287).

The need has to be for care and attention which are not available otherwise than through the provision of accommodation under section 21. The analysis may not be straightforward in every case. The matter is best left to the good judgment and common sense of the local authority and will not normally involve any issue of law requiring the intervention of the Court (Lord Carnwath, obiter, in R(L) v Westminster [2013] 1 WLR 1445).

If a local authority fails to comply with its statutory duty under section 21 and a court finds that a local authority acted unlawfully in not entering into section 21 arrangements, the deeming provision under section 24(5) will apply and be interpreted on the basis that the section 21 arrangements had actually been put in place by the appropriate local authority (R(Greenwich) v Secretary of State for Health [2006] EWHC 2576 (Admin) Charles J).

There is no definition of ordinary residence in the NAA. In circumstances where the deeming provision does not apply, and where capacity is not in issue, the question of ordinary residence falls to be determined on the principles laid down in the leading case of R v LB Barnet, ex parte Shah [1983] 2 AC 309. Broadly speaking, a person’s ordinary residence will be his “abode in a particular place ... which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being ...” (per Lord Scarman at 343). Additional tests may apply where people are not considered to have capacity to make their own decisions about where they wish to live.

In his determination of 2 October 2015, Mr Richardson, on behalf of the Secretary of State arrived at the conclusion that:

“HR has been ordinarily resident in Barking’s area at least from June or July 2013 if not earlier, that is to say from:

•

The date when he moved into [Barking’s area] on a long term basis which appears to have been 15 September 2012 (the date he apparently began residing there);

•

11 or 18 April 2013, when a tenancy agreement was signed on his behalf; or

•

22 April 2013, when Housing Benefit started being paid for him by [Barking]. [3]

In coming to his decision Mr Richardson reached the following view about whether the care and attention HR needed were available otherwise than by the provision of residential accommodation under section 21:

“In my view HR was receiving the care and attention he required whilst living in private residential accommodation. However equally the services he required could have been provided by another provider. Those services were not intrinsically linked to the accommodation. Accordingly I find that [Redbridge] were perfectly lawfully making arrangements other than under section 21 [46]

Section 29 of the 1948 Act and the Directions issued under that section require the provision of certain welfare services to individuals such as HR. Such services are provided in the community. It is clear that the services provided to HR come within the nature of services which can be provided in a person’s own home under these provisions” [47]

Therefore the provision of residential care under Part 3 of the 1948 Act was not the only option open to [Redbridge] when making its decision as to how to properly meet HR’s needs for care and support. There is no evidence to show that [Redbridge’s] assessment was not reasonably or properly made or that [Redbridge] could not reasonably conclude that HR’s needs could be appropriately met by the provision of services under section 29 of the 1948 Act in supported living accommodation rather than by the provision of residential accommodation under Part 3 of the 1948 Act [52].”

On reviewing his decision, following a request by Barking, Mr Richardson upheld his initial decision:

“on the premise that the care and attention HR needed were available, in fact by the provision of services in his own accommodation and that in the circumstances the link between the availability of care and attention and the provision of accommodation under section 21 was broken or disaggregated”[45]

“I therefore remain of the view that there is no basis for me to interfere with [Redbridge’s] findings of fact in relation to the availability of care and attention otherwise than by the provision of residential accommodation. Per Wahid it was for the local authority to assess whether or not the conditions of section 21 were fulfilled” [53]

The Claimant challenges the Secretary of State’s decision on two grounds.

The first ground: A ‘crisis’ or ‘hiatus’ in care, sparked in August 2012 by HR’s parents refusing to take HR back from the Barking accommodation to their home in Redbridge, triggered a duty on Redbridge to provide HR with residential accommodation under section 21. HR was in need of care and attention which were no longer available to him other than by the provision of such accommodation. As a consequence, the deeming provision in section 24(5) applies pursuant to which HR was deemed to be ordinarily resident in Redbridge and Redbridge remained responsible for funding HR’s care.

The second ground: once activated the deeming provision in section 24(5) remains active for so long as care is provided under Part 3 of the NAA. Accordingly Redbridge remained responsible for HR’s care post April 2013. The Secretary of State fell into two errors in this regard. It was irrational for the Secretary of State to conclude that services required to meet HR’s assessed needs such as bathing, dressing, grooming, housework and preparing meals were not “intrinsically linked to the accommodation”. Secondly, an approach whereby supported living arrangements under section 29 of the NAA are an alternative to section 21(1)(a) provision where the conditions of the latter are met would have the effect of collapsing the duty under section 21(1)(a) into a mere power, contrary to both section 24 of the NAA and the relevant Approvals and Directions issued under the Act.

The Claimant makes three overarching submissions on relevant aspects of the legislative regime. Firstly, section 21 provides a comprehensive scheme of protection for those in need. Caselaw establishes that local authorities have flexibility to act to head off a forthcoming crisis in care thereby ensuring there are no gaps in protection and that the section functions, as intended, as a provision of last resort. Secondly, a local authority cannot be permitted to avoid any duty arising under section 21 by providing care services under section 29 of the NAA. To permit this would be to collapse the section 21 duty into a power. Thirdly, the policy intent underlying the deeming provision is to remove any incentive on local authorities to ‘export’ those with costly care needs out of borough into the jurisdiction of other local authorities.

The Claimant argues that the effect of the legal propositions cited above is that the legislative scheme does not permit the legal limbo that arose in the case of HR during the period August 2012 – April 2013 that had been triggered by the crisis in care. HR had been ordinarily resident in Redbridge in 2012. Whilst he lived in Redbridge with his parents, the care and attention he required were available at home, provided by his family and by outreach care from Overzest and Hope Superjobs, commissioned pursuant to section 29 of the Act. However the services provided under section 29 did not of themselves meet HR’s needs because they were in large part accommodation related in that they were ineffectual without accommodation. A review of HR’s care plan makes clear that the assessment of his needs was a section 21 assessment in all but name. HR’s needs included help with intimate personal care such as bathing and requiring escorts when accessing community based services. Accordingly it was irrational for the Secretary of State to arrive at the view that HR’s assessed needs which included bathing, dressing, grooming, housework and preparing meals were not “intrinsically linked to the accommodation”.

HR’s needs can be distinguished from the needs of the Claimant in R(L) v Westminster [2013] 1 WLR 1445, who only needed weekly meetings. Once HR’s parents revoked his licence to stay at their house, HR only had a care package of respite accommodation at the Barking property (which was allocated at 28 days a year). For the rest of the year he had no accommodation and thus could not receive the care and accommodation he required. At that moment in time a duty was imposed on Redbridge to act under section 21. Redbridge’s decision to extend his 28 days of accommodation to full time accommodation at the Barking property emphasises HR’s need for full time residential accommodation.

It is for the local authority, not the Secretary of State or the Court, to assess the nature of social care needs and the arrangements by which those needs can most appropriately be provided for. The local authority’s decision is subject to judicial review on the usual grounds (Wahid v TowerHamlets [2002] EWCA Civ 287). More particularly, the question whether a person’s needs can only be met by the provision of residential accommodation under section 21 of the NAA is best left to the judgement of local authorities and should not usually require the intervention of the Court (Lord Carnwath, obiter, in R(L) v Westminster [2013] 1 WLR 1445).

Prior to August 2012, HR was ordinarily resident in Redbridge’s area, living at his parents’ house. As the local authority with responsibility for his care, Redbridge had assessed HR’s needs as capable of being met at his home where HR resided with his parents, with care provided under section 29 of the NAA. There is no challenge to that assessment or any complaint that the care provided was not adequate.

In August 2012, HR’s parents refused to take HR back home from his respite care in the Barking accommodation. An email from HR’s independent advocate to HR’s social worker in August 2012 asks if HR could remain at his respite care whilst the situation was thoroughly explored. During this period, HR’s care continued to be provided by his previous care provider (Overzest) at the Barking accommodation where HR was accustomed to staying and he had clearly indicated he liked staying. In my judgment this period is appropriately characterised as a temporary or interim period of decision making during which Redbridge held the ring by allowing HR to remain at his respite care and to continue to receive the personal care he had previously received under section 29 of the NAA. Caselaw makes clear that residential accommodation under section 21 is accommodation of last resort. It cannot be said that matters were at last resort stage – they were at an interim decision making stage.

By April 2013, Redbridge had arrived at the decision that HR’s needs could be met by his continued residence at the Barking accommodation with personal care provided pursuant to section 29 of the NAA, an arrangement known as a supported living arrangement. In submissions the Claimant took me to HR’s care plan and suggested that the levels and nature of the personal care required by HR meant that his arrangements amounted to the provision of residential accommodation under section 21 in all but name. I accept the principle that where a local authority unlawfully fails to comply with its statutory duty under section 21, the Court should proceed on the basis that the section 21 arrangements had actually been put in place (R(Greenwich) v Secretary of State for Health [2006] EWHC 2576 (Admin)). However it is not for the Court to substitute its own views about HR’s care. The Court, and the Secretary of State in making a determination about ordinary residence, must restrict their considerations to matters of unlawfulness. In this context the Secretary of State applied the correct legal test when concluding that Redbridge had arrived at its decision on HR’s needs ‘lawfully and rationally’.

In coming to its decision in April 2013, Redbridge took into account the view of HR’s parents; his independent advocate; a clinical behavioural specialist; a psychiatrist and his care providers. There was considerable material available as to HR’s needs including reports from HR’s independent advocates and a doctor specialising in psychiatry. A detailed care management review was produced.

The Claimant sought to contrast the levels and nature of care required by HR with the care required by the Claimant in R(L) v Westminster [2013] 1 WLR 1445, whose need amounted to the provision of weekly meetings which were not held to be accommodation related. I accept that the help HR required with personal grooming may be said to be more closely tied to accommodation than weekly meetings with a care coordinator which was the position in SL v Westminster. However, HR’s care was satisfactorily provided at his home prior to August 2012. The hiatus in care was not caused by his care needs changing but by HR, followed by his parents, expressing a clear wish for HR to move out of the family home to the Barking accommodation. The care he had previously received at home was then provided at the Barking accommodation.

Accordingly, in my judgment, the Secretary of State made no error of law when deciding that the services HR required were not intrinsically linked to his accommodation and were of the nature of care provided in the home under section 29 of the NAA. In these circumstances, the provision of residential care under section 21 was not the only option open to Redbridge and was not therefore required as a last resort.

In my judgment, the decision by Redbridge in April 2013 that the interim care arrangements could continue indefinitely confirms the artificiality of the Claimant’s attempt to hive off the period between August 2012 and April 2013 and characterise it as a period of ‘legal limbo’.

Accordingly, ground 1 of the claim fails.

Given I have found that a duty on Redbridge under section 21 of the Act was not triggered by the hiatus in care in August 2012, the Claimant’s case on ground 2 fails. The ground raises the question of law as to the interpretation of the scope of section 24(5) of the NAA.

However, as the issue becomes relevant if a different conclusion is reached on issue i) and the parties made submissions on the point, I express the view that the deeming provision in section 24(5) applies for so long as a person remains in residential accommodation provided pursuant to section 21. I base my view on the use of the present tense in “Where a person is provided with residential accommodation under this Part of the Act”. The wording of Section 21(5) appears to support this interpretation by construing references to ‘accommodation provided under this part’ of the Act so as to exclude section 29.

It follows that even if the section 21 duty, and deeming provision in section 24(5) had been triggered in August 2012, the deeming provision would have fallen away by April 2013 when Redbridge lawfully formalised the supported living placement for HR under section 29 of the Act. Accordingly the Secretary of State’s decision that HR was ordinarily resident in Barking from June or July 2013, if not April 2013, remains the same.

At the start of the hearing, Mr Rutledge made an application that Redbridge should not be entitled to participate in the hearing because they had not submitted detailed grounds; having only submitted summary grounds and a skeleton. He relied on CPR 54.14. At the hearing I indicated I would find it helpful to hear Ms Rhee and I would address the application in the judgment. I decline to accede to Mr Rutledge’s application. Redbridge filed summary grounds of defence. Requiring the local authority to duplicate the Secretary of State’s detailed grounds solely for the purpose of enabling it to participate in the hearing would have been disproportionate and contrary to the overriding objective in CPR 1.1 of dealing with cases proportionately. I found it helpful to hear from Ms Rhee during the hearing. Her submissions were concise and did not duplicate those of the Secretary of State.

I have some sympathy for the position Barking finds itself in. As from 1 April 2015, the NAA was replaced by the Care Act 2014. Had HR’s ordinary residence fallen to be determined a few years later under the Care Act 2014 the outcome might have been different. Section 39 of the Care Act has a similar deeming provision to that of section 24(5) of the NAA but the provision extends to a wider array of accommodation, including supported living arrangements of the type put in place for HR in April 2013.

Nonetheless, for the reasons set out above, this claim for judicial review is dismissed.