High Court judge rejects legal challenge by county council to determination by Health Secretary in ‘ordinary residence’ dispute

The Secretary of State for Health and Social Care has successfully defended his determination in an ‘ordinary residence’ dispute between two councils over the funding of accommodation at a transitional rehabilitation unit (TRU) for a man who sustained a serious brain injury in a road traffic accident in January 1990.

In Lancashire County Council, R (On the Application Of) v JM & Anor [2021] EWHC 268 (Admin) the first interested party, JM, had before May 2010 been living in accommodation he owned in Bury.

That accommodation, which i within the area of Lancashire County Council, had been brought with funds from a damages award made in JM's favour and the funds were at the material times under the control of a property and affairs deputy acting under the supervision of the Court of Protection.

In May 2010 JM moved to live at a TRU, a private facility located in the area of St Helens Council. JM subsequently moved to a different TRU albeit one still within the area of St Helens.

A dispute arose between Lancashire and St Helens as to which authority had responsibility for funding JM's accommodation at the TRU. The question of responsibility turned on which authority was to be regarded as the one in whose area JM was ordinarily resident for the purposes of the National Assistance Act 1948.

Lancashire and St Helens referred their dispute to the Secretary of State for determination pursuant to the Care Act 2014. By his decision of 3 March 2020 the Secretary of State determined that JM was ordinarily resident in Lancashire.

Lancashire sought judicial review of that decision.

It was common ground that the move to the TRU meant that JM would fall to be treated as having been ordinarily resident in St Helens unless section 24 (5) of the National Assistance Act 1948 came into operation by reason of the application of the principle set out in R (on the application of London Borough of Greenwich) v Secretary of State for Health [2006] EWHC 2576 (Admin).

For the claimant James Goudie QC of 11KBW and Sophie Cartwright of Deans Court Chambers said that the Secretary of State’s decision was erroneous in law and flawed in that account was taken of irrelevant matters and because the defendant failed to take account of matters which were truly relevant (in particular the fact that accommodation was already being provided for JM).

The conclusions that Lancashire should have assessed JM and should have provided accommodation and that the Deputy would have accepted an offer from Lancashire to fund the accommodation at the TRU involved, the claimant said, inappropriate speculation and an unwarranted extension of the Greenwich principle amounting to "deeming upon deeming".

It was also submitted on behalf of Lancashire that the approach which the defendant minister took to the application of section 21 (1)(a) was wrong in law because accommodation meeting JM's needs was otherwise available and was clearly so with the consequence that there had been no requirement on Lancashire to assess JM let alone to provide accommodation.

Further there was said to have been a failure correctly to consider and apply the approach set out in R (on the application of Barking & Dagenham LBC) v Secretary of State for Health [2017] EWHC 2449 (Admin). Conversely the defendant erred in taking account of section 21 (2A) which was irrelevant because the claimant had no regard to JM's resources.

For the defendant Secretary of State Jonathan Auburn and Hannah Slarks, both of 11KBW, contended that the minister approached the exercise of determining JM's ordinary residence correctly.

They said it was necessary for the defendant to reach conclusions as to what would have happened in the circumstances as they existed in 2010. In particular the defendant had to make a judgment as to whether there should have been an assessment by the claimant and as to what the outcome would have been if there had been such an assessment. That exercise was, the defendant said, not speculation but inherent in making the determination.

The conclusions which were reached were merited by the factual background and well within the range of conclusions open to the defendant, it was submitted. The defendant's case was that the interpretation and application of sections 21 (1)(a) and 24 (5) contained in the decision were correct as a matter of law and that the operation of section 21 (2A) rather than being irrelevant was of central importance.

Dismissing Lancashire’s challenge, HHJ Eyre QC said he was satisfied that the Secretary of State approached the determination in the correct manner.

“The exercise inevitably required the Secretary of State as a matter of judgement to reach conclusions as to what should have been done and as to what would have happened if the appropriate steps had been taken in the Spring of 2010,” he said.

“The conclusions which were reached in the Decision were ones which the Defendant was properly entitled to reach on the material before him. There was no error of law in the Defendant's approach or in the conclusions reached and in particular in the conclusions that Lancashire had a duty to undertake an assessment; that the assessment should have resulted in a finding of need which was not being met from resources available otherwise than from Lancashire; and that as a consequence the deeming provision of section 24 (5) came into play. The challenge to the Decision accordingly fails.”