R (Kent CC) v SSH [2015] EWCA Civ 81, [2015] MHLO 13

"This case concerns the question of which of a number of local authorities should be responsible for funding the residential accommodation of a disabled adult pursuant to section 21 of the National Assistance Act 1948. In particular, it concerns the proper construction of section 24(5) which deems a person to be ordinarily resident in a local authority area when he is in fact ordinarily resident elsewhere."

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  

LOCAL GOVERNMENT — Community care services — Persons in need of care and attention — Duty of local authority to provide accommodation — Ordinary residence of disabled individual — Accommodation in claimant authority’s area funded by NHS until funding withdrawn but accommodation unchanged — Deeming provision whereby person deemed to be ordinarily resident in local authority area where previously ordinarily resident before present accommodation provided — Whether deeming provision applying only if previously ordinarily resident in area with funding under same statute or if ordinarily resident with funding provided at public expense — Whether local authority for place where individual previously ordinarily resident or claimant authority under obligation to fund present accommodation — National Assistance Act 1948, s 24(5)

Regina (Kent County Council) v Secretary of State for Health

[2015] EWCA Civ 81!; [2015] WLR (D) 68

CA: Lord Dyson MR, Tomlinson, Burnett LJJ: 11 February 2015

The deeming provision in section 24(5) of the National Assistance Act 1948, whereby a person provided with residential accommodation under section 21 of that Act was deemed to be ordinarily resident in the area in which he had been ordinarily resident immediately before that accommodation had been provided to him, was of no effect where that residential accommodation had previously been funded from another source, such as the NHS, rather than under the 1948 Act (before 19 April 2010). It followed that a disabled adult who had been living in residential accommodation with NHS funding was, at the moment when that funding had stopped, ordinarily resident in area of the authority in which the accommodation was situated, with the result that that authority was fixed with liability to fund that accommodation under section 24(1) of the Act from the time when the NHS funding had stopped.

The Court of Appeal so held, giving reasons for dismissing the claim of the claimant, Kent County Council, for judicial review of the determination by letter of 13 March 2013 by the defendant, the Secretary of State for Health, under section 32(3) of the 1948 Act that the claimant was responsible for funding the accommodation of the first interested party, NA, a disabled person, because, at the date on which the NHS had ceased to fund it, NA had been ordinarily resident in that accommodation which was within the claimant’s area. Eder J on 30 January 2014 had refused permission to proceed with the claim, but on appeal the Court of Appeal had granted permission to proceed and retained the claim for determination. Sutton London Borough Council and Barking and Dagenham London Borough Council were the second and third interested parties.

Section 24(5) of the National Assistance Act 1948 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”.

BURNETT LJ said that the claimant had submitted that the second reference to “residential accommodation provided” within section 24(5) ought not to be understood as referring to residential accommodation provided under the 1948 Act, by contrast with the first reference, since it was not expressly described as such and ought instead to be construed widely to include residential accommodation provided at public expense, whatever the source of that funding. The Secretary of State, supported by the second and third interested parties, had submitted that the literal meaning of section 24(5) was clear: the second reference to “residential accommodation” was preceded by the definite article and thus clearly referred to the residential accommodation provided under the 1948 Act. They had submitted that the claimant’s construction was inconsistent with the purpose of section 24(5) which was to ensure continuity of financial provision whilst a person was provided with section 21 accommodation, even if he were moved across local authority boundaries. Those submissions had rightly been accepted by Eder J. In his Lordship’s judgment there was no room for any other interpretation on the language of the subsection. The purpose of the deeming provision was to provide continuity of financial responsibility whilst a person was being provided with accommodation under section 21 of the 1948 Act. It was not uncommon for those who were eligible for such assistance, for practical reasons or to secure their best interests, to be placed outside the area of the local authority with the statutory responsibility. The deeming provision avoided complications arising in connection with funding in those circumstances and the possibility of a local authority placing someone outside its own area to ease its financial burdens. The 1948 Act contained another deeming provision for circumstances in which a person had been in NHS care before accommodation was provided pursuant to section 21. At the time when NA’s entitlement to section 21 accommodation had arisen in February 2010, section 24(6) had applied only to hospitals, which did not assist the claimant because the residential accommodation in which NA lived was not a hospital. Section 24(6) had been amended by section 148(1) of the Health and Social Care Act 2008 with effect from 19 April 2010. The new provision had widened significantly the circumstances in which a person whose accommodation was funded by the NHS would be deemed to be ordinarily resident in the local authority area in which he had lived before the NHS had provided the accommodation. Had that provision come into force before NA was provided with accommodation pursuant to section 21 it would have relieved the claimant of its funding obligations and left the second and third interested parties as potential funders. The 1948 Act had made explicit provision for the consequences of ordinary residence when, immediately before accommodation was provided under the 1948 Act, the person concerned had been accommodated by, or at the expense of, the NHS. In that way Parliament had considered (and reconsidered) the circumstances in which the fact of NHS provision of accommodation ought to affect the funding obligations which attached to local authorities. If the claimant had been right Parliament need not have troubled with the amendment.

LORD DYSON MR and TOMLINSON LJ agreed.

Appearances: Kerry Bretherton (instructed by Director of Law & Governance, Kent County Council, Maidstone) for the claimant; Samantha Broadfoot (instructed by Treasury Solicitor) for the Secretary of State; Kelvin Rutledge QC (instructed by London Borough of Barking and Dagenham Legal Practice, Dagenham) for the third interested party; the first and second interested parties did not appear and were not represented.

Reported by: Susan Denny, Barrister

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